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Selective Enforcement and International Criminal Law: The International Criminal Court and Africa
The dynamics of enforcing international criminal justice through the International Criminal Court (ICC) has become a challenging exercise in Africa. At times the uneasy relationship between the ICC, the African Union, and a few influential African states has given rise to concerns about the future of international criminal justice in general, and in Africa in particular. Still, the enthusiasts for international criminal justice as enforced by the ICC, interpret the challenges that the ICC is encountering in Africa as part of the growing pains of a new institution in the international system. The distractors have already prepared the ICC's obituary. One of the criticisms levelled against the ICC, and which is the motivation for, and central theme behind, this book is that the ICC has morphed and ceased to be an independent legal institution, instead becoming a political tool utilized by politically powerful states in the West against their political opponents in Africa. More specifically, the Court is alleged to be selectively enforcing international criminal law by only officially opening investigations and prosecutions in Africa. Although this book recognizes that selective implementation of criminal justice is acceptable both at the domestic and international level, it analyzes the legal and political factors behind the Court's focus on international crimes committed in Africa when there are other situations to which the court should potentially turn its attention, such as in Syria, Afghanistan or the Occupied Palestinian Territories. The book seeks to determine whether such a focus implies that Africa has the monopoly over international crimes or whether African victims or perpetrators are any different from those in the Middle East? In addition the book attempts to uncover the basis and the validity of the African Union and some African states' criticisms of the ICC. (Series: Supranational Criminal Law: Capita Selecta, Vol. 20) [Subject: International Criminal Law, African Law]
1125138182
Selective Enforcement and International Criminal Law: The International Criminal Court and Africa
The dynamics of enforcing international criminal justice through the International Criminal Court (ICC) has become a challenging exercise in Africa. At times the uneasy relationship between the ICC, the African Union, and a few influential African states has given rise to concerns about the future of international criminal justice in general, and in Africa in particular. Still, the enthusiasts for international criminal justice as enforced by the ICC, interpret the challenges that the ICC is encountering in Africa as part of the growing pains of a new institution in the international system. The distractors have already prepared the ICC's obituary. One of the criticisms levelled against the ICC, and which is the motivation for, and central theme behind, this book is that the ICC has morphed and ceased to be an independent legal institution, instead becoming a political tool utilized by politically powerful states in the West against their political opponents in Africa. More specifically, the Court is alleged to be selectively enforcing international criminal law by only officially opening investigations and prosecutions in Africa. Although this book recognizes that selective implementation of criminal justice is acceptable both at the domestic and international level, it analyzes the legal and political factors behind the Court's focus on international crimes committed in Africa when there are other situations to which the court should potentially turn its attention, such as in Syria, Afghanistan or the Occupied Palestinian Territories. The book seeks to determine whether such a focus implies that Africa has the monopoly over international crimes or whether African victims or perpetrators are any different from those in the Middle East? In addition the book attempts to uncover the basis and the validity of the African Union and some African states' criticisms of the ICC. (Series: Supranational Criminal Law: Capita Selecta, Vol. 20) [Subject: International Criminal Law, African Law]
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Selective Enforcement and International Criminal Law: The International Criminal Court and Africa

Selective Enforcement and International Criminal Law: The International Criminal Court and Africa

by Jodi King
Selective Enforcement and International Criminal Law: The International Criminal Court and Africa

Selective Enforcement and International Criminal Law: The International Criminal Court and Africa

by Jodi King

Overview

The dynamics of enforcing international criminal justice through the International Criminal Court (ICC) has become a challenging exercise in Africa. At times the uneasy relationship between the ICC, the African Union, and a few influential African states has given rise to concerns about the future of international criminal justice in general, and in Africa in particular. Still, the enthusiasts for international criminal justice as enforced by the ICC, interpret the challenges that the ICC is encountering in Africa as part of the growing pains of a new institution in the international system. The distractors have already prepared the ICC's obituary. One of the criticisms levelled against the ICC, and which is the motivation for, and central theme behind, this book is that the ICC has morphed and ceased to be an independent legal institution, instead becoming a political tool utilized by politically powerful states in the West against their political opponents in Africa. More specifically, the Court is alleged to be selectively enforcing international criminal law by only officially opening investigations and prosecutions in Africa. Although this book recognizes that selective implementation of criminal justice is acceptable both at the domestic and international level, it analyzes the legal and political factors behind the Court's focus on international crimes committed in Africa when there are other situations to which the court should potentially turn its attention, such as in Syria, Afghanistan or the Occupied Palestinian Territories. The book seeks to determine whether such a focus implies that Africa has the monopoly over international crimes or whether African victims or perpetrators are any different from those in the Middle East? In addition the book attempts to uncover the basis and the validity of the African Union and some African states' criticisms of the ICC. (Series: Supranational Criminal Law: Capita Selecta, Vol. 20) [Subject: International Criminal Law, African Law]

Product Details

ISBN-13: 9781780683874
Publisher: Intersentia
Publication date: 02/13/2017
Series: Supranational Criminal Law: Capita Selecta , #20
Pages: 315
Product dimensions: 6.00(w) x 1.25(h) x 9.00(d)

About the Author

James Nyawo holds a Doctorate from the School of Law at Middlesex University, UK. He previously held the position of Visiting Lecturer with the Department of International & Cooperative Law at Khartoum University, Sudan and is currently an External Research Fellow at the International Victimology Institute (INTERVICT), Tilburg, Netherlands. He has worked as a humanitarian practitioner and consultant with national, international and UN agencies working with landmine victims, internally displaced persons and refugees in Angola, Uganda (North), South Sudan and Sudan.

Table of Contents

Preface vii

Acknowledgements ix

Chapter 1 Introduction 1

1.1 Statutory Rules and the Court's Engagement or Selection of Situations or Defendants 18

1.2 Selective Enforcement in International Criminal Law 23

1.2.1 Book Hypothesis 26

1.2.2 Book Outline 29

Chapter 2 The Establishment of the International Criminal Court, and Africa's Role and Early Support 33

2.1 Attempting to Understand Africa's Early Enthusiasm and Support for the Court 35

2.1.1 Rationalism Theory and Africa's Early Support for the Court 36

2.1.2 Constructivist Theory and Africa's Early Support of the Court 40

2.2 Role of the African Civil Society/NGOs in Promoting the Rome Statute and Cooperation with the Court in the Continent 45

2.2.1 Civil Societies/NGOs Arm-twisting the African Governments into Cooperating with the Court 47

2.3 The Court in the Global Governance System 51

2.4 The Seat of the Court 55

Chapter 3 The Office of the Prosecutor and the Politics of Selecting Targets for Prosecution 57

3.1 The US's Paranoia over the Politicisation of the Court and its Possible Impact on the Prosecutorial Strategy 60

3.2 The EU, the Provision of Political Leadership and Financial Stability to the Court, and the Iraq Problem 65

3.2.1 Minding the Bright Red Thread of Politics in Iraq 70

3.3 Challenges and Prospects of the Office of the Prosecutor 77

3.3.1 Appearance and Reality: Politics and the Limits of Prosecutorial Discretion in the Rome Statute 78

3.3.2 Politics: A Double-edged Sword for the Prosecutor 84

3.4 Proprio Motu Powers in Action and the Prosecutor's Fears Confirmed 89

3.5 The AU Strikes Back at the Prosecutor 93

Chapter 4 State Party Referrals, UN Security Council Referrals and the Selection of Situations 97

4.1 Outlining the Referral System in International Human Rights 97

4.2 Negotiating the Triggering Mechanisms into the Rome Statute 101

4.3 The UN Security Council Referral 101

4.4 State Party Referral 106

4.5 The Analysis: Links Between Referral Mechanisms and Selection of Situations by the Court - Darfur and Libya 108

4.5.1 Libya and Security Council Resolution 1970 113

4.5.2 States Parties Referrals and Selective Enforcement 120

Chapter 5 Assessing Selective Enforcement from an Admissibility Perspective 133

5.1 The Legal Basis for Admissibility in the Rome Statute 135

5.2 Three Stages of Admissibility Assessment under the Rome Statute 137

5.3 Statutory Factors that Regulate the Court's Decision to Intervene in a Given Situation 140

5.3.1 Unwillingness 147

5.3.2 Inability 153

5.4 Admissibility put into Practice by the Office of the Prosecutor and the Chambers 155

5.5 Crimes within the Jurisdiction of the Court 156

5.6 Admissibility in the Context of Self-Referral 162

5.7 The Admissibility of Situations Referred by the UN Security Council 171

5.8 The Admissibility of Situations Opened by the Prosecutor under Article 15 Powers 178

5.9 Gravity 182

Chapter 6 The AU and African States' Shift from Cooperation to Non-Cooperation with the Court 187

6.1 An Uneasy Encounter Between the AU and the Court in Darfur 194

6.2 The Jilted Lover's Response: Africa's Deteriorating Relationship with the Court - the Aftermath of 4 March 2009 204

Chapter 7 African States' Reaction to the AU's Call for Non-Co operation with the Court 221

7.1 Kenya Caught Between its Rome Statute Obligations and the AU's Non-Cooperation Resolution 223

7.2 Malawi: Keeping up with its Rome Statute Obligations under Changing Leadership 227

7.3 Nigeria and Closing the Impunity Gap 231

7.4 South Africa; Caught between the Desire to Show its True Pan-Africanism Credentials and its Position as an Upholder of International Law Obligations 235

7.5 An Attempt to Amend Article 16: The Push for a Power Shift from the UN Security Council to the UN General Assembly 243

7.6 The AU's Proposed Alternative Juridical Mechanisms to Curb the Courts Intervention: The Proposal for a Hybrid Court for Darfur 245

7.7 Conferring International Criminal Jurisdiction onto the African Court on Human and Peoples' Rights 247

Chapter 8 Africa and the International Criminal Court: The Lessons and Prospects 251

8.1 Lessons Learnt 253

8.1.1 African Situations are Poisoned Chalice and not Soft Landing for the New Court 253

8.1.2 The Court's Internal Control Mechanisms Should be a Source of Confidence for the States 256

8.1.3 The Court's Contribution Towards Promoting the International Rule of Law 258

8.1.4 African States Parties Taking the Lead in the Fine-Tuning of the Rome Statute System 261

8.1.5 The Pitfalls of Limited Promotion of Institutions Rooted in Progressive African Values, History and Philosophy 265

8.2 Prospects 268

8.2.1 The Court's Fortunes are Likely to Depend on the Political and Economic Situation in the EU 268

8.2.2 The Regionalisation of the Court for Visibility and Efficiency 269

8.2.3 The Office of the Prosector Likely to Concentrate on Suspects Lacking Protection from and Control of State Institutions 269

8.2.4 International Court of Justice Intervention to Settle Head of State of Immunity in the Context of the Rome Statute 270

Bibliography 271

Index 283

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