The Statute of the International Criminal Court was adopted on 17 July 1998 by an overwhelming majority of the States attending the Rome Conference. Although there is ample international literature on the International Criminal Court as an institution, there is a lack of African-based scholarship on the work of the Court in this region. The framework for how the different chapters contribute to the overall argument of the thesis is as follows.
The preamble of the Rome Statute states that the jurisdiction of the court will complement that of the national jurisdiction, and Article 17 of the statute embodies the principle of complementarity. 2 Press Release, ICC, Registrar Confirms Republic of Ivory Coast's Acceptance of Court's Jurisdiction (15 February 2005). Regardless of the advanced legislation of South Africa, our country quickly found itself in the policy of the African Union regarding the work of the International Criminal Court on the continent.
The power of the Council to refer cases to the Court with the accompanying power to decide on the adjournment of cases under Article 16 of the Rome Statute remains a real issue.
THE RISE OF THE INTERNATIONAL CRIMINAL COURT
Africa is a signatory to the Statute and a vocal supporter of the International Criminal Court. Genocide can therefore be committed by destroying a large number of the group (quantitative attempt at destruction) or by destroying a limited number of the target group because of the potential impact of their destruction on the survival of the group as a whole (qualitative attempt at destruction). Of the core crimes in the Rome Statute, "war crimes" were the first to be prosecuted under international law.
It is clear that any fundamental act committed (in terms of the larger event: an attack) requires its own form of intent. Several provisions of Article 8(2)(b) deal with prohibited weapons (for example, poison or poisoned weapons,91 poisonous gases and any similar liquids, materials or devices,92 and dummy rounds93) and limit their use to a war crime. Other serious violations of the laws and customs applicable in armed conflicts which are not of an international nature (Article 8(2)(e) of the Rome Statute).
123 J Dugard “Conflicts of Jurisdiction with Truth Commissions” in A Cassese et al (reds) The Rome Statute of the International Criminal Court: A Commentary.
COMPLEMENTARITY AND AFRICA: THE PROMISES AND
Failure to cooperate may lead, among other things, to a referral by the State to the Security Council (Article 87, seventh paragraph). It is with regard to the situation in the DRC that the Court has made the most progress. And recently, Mathieu Ngudjolo Chui became the third person in ICC custody.
One thing is very clear: the active involvement of the Security Council will be vital for the effective functioning of the ICC. The ISS monograph was about the importance of measures at the national level for the effectiveness of the international criminal justice scheme. Implementation of the ICC Statute in Selected African Countries (ISS Monograph Series, Institute for Security Studies, Pretoria 2008) 95.
One of the most important initiatives in this regard is of course the establishment of the International Criminal Court.
THE INTERNATIONAL CRIMINAL COURT AND SOUTH
Section 4(1) of the ICC Act creates jurisdiction for a South African court over ICC crimes by providing that. In order to fulfill South Africa's obligations in terms of the ICC Act, a Priority Crime Litigation Unit (PCLU) has been established within the NPA, which is led by a Special Director of Public Prosecutions who, in terms of section 13(1) (c) of the National Prosecuting Authority Act. First: the decision to investigate/prosecute must take into account the objectives of the ICC Act.
No other part of the Act refers to an order to be surrendered to the ICC. The import of Article 4(2)(a) of the ICC Act would thus be to give effect to the exception to immunity ratione materiae. See P Gaeta "Official Capacity and Immunities" (2002) in Cassese et al (eds) The Rome Statue of the International Criminal Court: A Commentary vol.
South Africa has shown itself to be a keen supporter of the International Criminal Court and the ICC Act formalises that support.
THE COURT BEGINS ITS WORK – AN AFRICAN AFFAIR,
African states contributed extensively to the preparations leading up to, during and after the diplomatic conference in Rome that finalized the Rome Statute of the ICC. 274 See generally Sivu Maqungo, “The establishment of the International Criminal Court: SADC's participation in the negotiations African Security Review available at. There was therefore no reasonable basis to believe that war crimes falling within the jurisdiction of the Court had been committed.
All states that become parties to the Rome Statute thereby accept the jurisdiction of the Court with regard to these crimes. For example, Article 12 of the Rome Statute provides that the Court may exercise jurisdiction if: (a) the State where the alleged crime was committed is a party to the Statute (territoriality); or b) the State of which the suspect is a national is a party to the Statute (nationality). By ratifying the Statute, these three states demonstrated their acceptance (morally and legally under international law) of the ideals of the Rome Statute.
De Waal continues: "The positions of the PSC do not give much comfort to the supporters of the ICC and advocates of universal jurisdiction". This belief conjures up images of the ICC with unlimited powers of intervention: that it is a superpower unto itself. This view appears to be based on a fundamental misunderstanding of the Rome Statute and the system of complementarity that is so central to the work of the International Criminal Court.
For example, it will be remembered that the Sudan reference is cited as further proof of the ICC's predilection for African situations. Much has been said elsewhere about the "unfortunate and excessive"358 objections of the United States to the ICC. 360 See Michael Scharf “The United States and the International Criminal Court: The ICC's Jurisdiction over the Nationals of Non-Party States: A Critique of the US.
She explained that “we do not agree with the Security Council referring the situation in Darfur to the ICC,” but stated that she did. Of course, that discussion must also include criticism of the Court's work, where criticism is appropriate, but.
THE POLITICS OF INTERNATIONAL CRIMINAL JUSTICE
The result is that the uneven political landscape of the Security Council has become a central problem of the International Criminal Court. Following the referral of the situation in Darfur to the ICC by the Security Council, the various mechanisms of the ICC were engaged. 465 The third report of the Prosecutor of the International Criminal Court to the UN Security Council in accordance with the UNSCR 1-2 June.
469 Third Report of the Prosecutor of the International Criminal Court to the UN Security Council pursuant to the UNSCR June 3. 509 Resolution on the Meeting of the African States Parties to the Rome Statute of the International Criminal Court (ICC), Doc.Assembly/ AU/13 (XIII), subsection 510 Decision on the meeting between the African states that are parties to the Rome Statute of the International Criminal Court (ICC), Doc.Assembly/AU/13(XIII) para.
Human Rights Watch, "The Meaning of 'Interests of Justice' in Article 53 of the Rome Statute" (June 2005). 540 Decision on the Report of the Second Meeting of States Parties to the Rome Statute of the International Criminal Court (ICC) DOC. And to date, the Security Council has failed to refer the situation in Gaza to the ICC prosecutor.
Decision on the Session of the African States Parties to the Rome Statute of the International Criminal Court (ICC), Doc.Assembly/AU/13(XIII), paragraph 9. Decision on the Report of the Second Session of the States Parties to the Rome Statute of the International Criminal Court (ICC) DOC. Bourgon, S 2002, 'Jurisdiction ratione loci' in A Cassese, P Gaeta & JRWD Jones (eds), The Rome Statute of the International Criminal Court: Commentary.
Cassese, A 1999, 'The Statute of the International Criminal Court: some preliminary reflections', European Journal of International Law, vol. The Office of the Prosecutor of the International Criminal Court 2006, Report on the Prosecution Strategy, September 14. Third Report of the Prosecutor of the International Criminal Court to the UN Security Council pursuant to UNSCR 1593, 2005.
Third Report of the Prosecutor of the International Criminal Court to the UN Security Council pursuant to the UN Security Council June, pp.
RECENT DEVELOPMENTS, CONCLUSIONS AND
541 For the full list of recommendations, see: Recommendations of the Ministerial Meeting on the Rome Statute of the International Criminal Court, 6 November 2009, Addis Ababa. African Union Press Release: Decision of the Meeting of African States Party to the Rome Statute of the International Criminal Court, Addis Ababa, 14 July 2009. Conderelli, L & Villalpando, S 2002, 'Referral and postponement by the Security Council' , in A Cassese, P Gaeta & JRWD Jones (eds), The Rome Statute of the International Criminal Court: a commentary, vol.
Crawford, J 2003, 'The drafting of the Rome Statute' in P Sands (red.), From Nuremberg to The Hague, Cambridge University Press, Cambridge. Dugard, J 2002, 'Possible conflicts of Jurisdiction with Truth Commissions in A Cassese, P Gaeta & JRWD Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, vol. Du Plessis, M 2007, ‘South Africa’s Implementation of the ICC Statute – An African Example”, Journal of International Criminal Justice, vol.
El Zeidy, MM 2006, 'Critical thoughts on Article 59(2) of the ICC Statute', 4, Journal of International Criminal Justice, vol. Gaeta, P 2002, 'Official capacity and immunities' in A Cassese, P Gaeta & JRWD Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, vol. Human Rights Watch 2005, 'The Meaning of 'Interests of Justice' in Article 53 of the Rome Statute'', June.
International Criminal Court Press Release 2005, “ICC Prosecutor Opens Investigation in Darfur,” June 6, ICC-OTP-0606-104-En. Kirsch, P & Robinson, D 2002, 'Trigger mechanisms' 623-625 in A Cassese, P Gaeta & JRWD Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, vol. Maqungo, S 2000, 'The establishment of the International Criminal Court: SADC's participation in the negotiations', African Security Review, vol.
Moreno-Ocampo, L 2006, 'Letter from the Prosecutor dated 9 February 2006', (Iraq), The Office of the Prosecutor of the International Criminal Court. Recommendations of the Ministerial Meeting on the Rome Statute of the International Criminal Court, 6 November 2009, Addis Ababa Min/ICC/Legal/Rpt. Report of the Meeting of African States Party to the Rome Statute of the International Criminal Court, 8-9 June 2009, Addis Ababa, Min/ICC/Rpt.
Updated Communications Received by the Office of the Prosecutor of the International Criminal Court 2006, February 10, http://www.icc-.
