The International Criminal Court was set up in the year 2002 to try the "most serious crimes of international concern" including genocide, crimes against humanity and other violations of international humanitarian law. Prior to the setting up of the ICC most of the key legal jurisprudence under international criminal law had already been developed and consolidated by the United Nations International Criminal Tribunal for Rwanda and the United Nations International Criminal Tribunal for the former Yugoslavia hereinafter referred to as the UNICTR and UNICTY respectively. Both tribunals were set up by the United Nations Security Council acting under chapter VII of the United Nations charter to do what is necessary to maintain international peace and security. Pursuant to this the two international tribunals were set up in the mid 90s in response to the genocide and crimes against humanity that had ravaged Rwanda and Yugoslavia respectively and that would undoubtedly go down as amongst the greatest tragedies the world has ever seen. The fundamental difference between them and the ICC is that they are ad-hoc in nature whilst the ICC is envisaged to be a permanent tribunal. The ICC unlike the UNICTR and UNICTY is also not a UN body but an autonomous institution with its own international legal personality. With the UNICTR and UNICTY to end their mandates shortly the ball will be firmly in the ICCs court to consolidate and build on their achievements and continue the struggle and fight against impunity.
Under article 17(a) of the ICC statute otherwise known as the Rome statute, the ICC would only investigate or prosecute a crime under its jurisdiction were the state which has jurisdiction over it is either unwilling or unable to investigate and were necessary prosecute the crime in question. This is otherwise known as the principle of COMPLIMENTARITY.The principle reflects reality as like its predecessors the ICC would neither have the time or resources to try every case within its jurisdiction.
Evidence of unwillingness is outlined under article 17(2) as encompassing one or more of the following:
"(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the court.
(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice.
(c) The proceedings were not or are being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice."
To determine inability on the other hand the court is expected to pursuant to article 17(3) to consider whether, "due to a total or substantial collapse or unavailability of its national judicial system, the state is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings."
It is against this background that we consider the principle, its workability in Africa and some of the wider ramifications it can have on the fight against impunity in Africa.
In many respects the indictment of sitting Sudanese head of state Omar El Bashir,a first in the history of International Criminal Law, gives an insight as to the potential obstacles and challenges to the flourishing of the principle in Africa. Many of our judicial systems are either significantly incapacitated or that there is or there is likely to be unhelpful political interference were a situation involves a sitting head of state or close allies of his. I hasten to add that these problems are not peculiar to Africa alone but for the purposes of this article we will limit our critical parameters to Africa. One can strongly argue that in Sudan?s case they can be deemed to be both unable and unwilling to try bashir.A lot has already been said about the wisdom and timing of Bashirs indictment so its probably unnecessary for me to comment on it. What is clear is that the nature of Bashirs grip on power is such that he has absolute control over the key institutions including the judiciary in Sudan. It would thus be unreasonable and probably absurd to expect him to create a conducive atmosphere for the trial of himself. This would have effectively made him a judge in his own case. The situation would be different if he is voted out of office and replaced by a genuinely democratic government with aneffective,efficient,independent and well capacitated Sudanese judiciary. Until such happens the ICC has no option but to exercise jurisdiction.
There would also be cases wherein eventhough there is the genuine will to investigate or prosecute, the judicial system of the country in question is not of a sufficiently high standard to guarantee a free and fair hearing particularly in light of the harsh socio-economic realities in many African countries. This hurdle unlike the first one is less insurmountable. All that needs to be done is for the international community to show greater resolve to enhance the capacity of judicial and other related institutions to a standard that a free and fair hearing can flourish. A perfect example can be seen in post-genocide Rwanda. The UNICTR, the Rwandan government and the wider international community have worked together to carry out significant reform to the Rwandan judicial system. As a result the death penalty was abolished, the Rwandan judiciary capacitated through provision of training and other resources to help promote and guarantee the rule of law. This paved the way for the UNICTR to transfer a significant number of there cases to the local Rwandan judiciary thus helping greatly compliment the UNICTR in discharging its mandate. A number of African countries have already attained these standards but unfortunately they are in the distinct minority. Where however an indictment involves a sitting head of state am afraid the only realistic and productive line of action to take is to allow the ICC to exercise direct jurisdiction.
Malick H.B Jallow holds an LLB (hons) Degree in law from the University of Buckingham in the United Kingdom. He has undertaken post-graduate studies in International Criminal Law. He has also worked as a Legal intern with the United Nations backed Special Court for Sierra-Leone. He will be working as a Legal intern with the International Criminal Court at The Hague in the Netherlands with effect from the 2nd of July 2010.Jallow currently works as a State Prosecutor.
