Realising the potential of the International Criminal Court: The African experience

Human Rights Law Review

Volumn 6, Issue 3, 2006, Pages 499-544

  Bekou, Olympia ^a   Shah, Sangeeta ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33845682487     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngl011     Document Type: Article

References (270)

1. Schabas, An Introduction to the International Criminal Court, 2nd edn (Cambridge: Cambridge University Press, 2004) at 25.
2. Rome Statute of the International Criminal Court 1998, 2187 UNTS 90.
3. See Articles 1 and 17, Rome Statute. The Rome Statute also sets out 'offences against the administration of justice' in Article 70, which States Parties must extend their criminal laws to penalise.
4. Article 17, Rome Statute.
5. As of June 2006 there are 100 States Parties.
6. To the authors' knowledge, 30 of the States Parties have actually enacted or amended domestic laws in accordance with provisions in the Rome Statute. For a selection of enacted implementing legislation, see: www.nottingham.ac.uk/law/hrlc/projects/icj-projects.php
7. In this article, 'Africa' refers to Sub-Saharan Africa, including Sudan, as defined by the UN Statistics Division.
8. Investigations by the Office of the Prosecutor are currently underway in Uganda, the Democratic Republic of Congo and Sudan. See infra for a discussion of these situations.
9. The African States that have ratified the Rome Statute are: Benin, Botswana, Burkina Faso, Central African Republic, Congo (Brazzaville), Democratic Republic of Congo, Djibouti, Gabon, Gambia, Ghana, Guinea, Kenya, Lesotho, Liberia, Malawi, Mali, Mauritius, Namibia, Niger, Nigeria, Senegal, Sierra Leone, South Africa, Uganda, Tanzania and Zambia. Furthermore, despite not being a State Party, Côte d'Ivoire has accepted the jurisdiction of the Court. See ICC Press Release, 'Registrar confirms that the Republic of Côte d'Ivoire has accepted the jurisdiction of the Court', 15 February 2005, ICC-20050215-91-En.
10. Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 ('South African Act').
11. This is referred to in the Report of the Commonwealth Expert Group on Implementing Legislation for the Rome Statute of the International Criminal Court, available at: http://www.thecommonwealth.org.
12. The International Criminal Court Bill 2004, 28 May 2004 ('Ugandan Bill').
13. International Crimes Bill 2005 ('Kenyan Bill').
14. Projet de loi modifiant le code de procédure pénale ('draft Senegalese cooperation legislation'); and Projet de loi modifiant le code pénal ('draft Senegalese crimes legislation').
15. Avant projet de loi portant mis en oeuvre du statut de la cour pénale internationale, juillet 2003 ('DRC draft legislation').
16. Projet de loi No......../2003 portant repression du crime de genocide, des crimes contre l'humanité et des crimes de guerre. This draft law will not be commented upon as it was brought to the authors' attention only after completion of the article.
17. Loi No 8-98 du 31 octobre 1998 portant définition et répression du génocide, des crimes de guerre et des crimes contre l'humanité ('Congo (Brazzaville) legislation').
18. Penal Code 2001.
19. Some of the discussion in this article is based upon information that was made available to the authors following their involvement in a six-day International Criminal Court Training Course for the Sub-Saharan African Region, organised by the University of Nottingham Human Rights Law Centre in Cape Town, South Africa, in June-July 2004. 28 participants representing 18 African States were asked to complete a detailed questionnaire on the status of implementing legislation in their own country. Their responses as well as discussions during the training course inform the discussions in the present article.
20. Accord de Coopé ration Judiciare entre la République Démocratique du Congo et le Bureau du Procureur de la Cour Pénale Internationale, 6 October 2004, available at: www.icc-cpi.int.
21. Draft Legislation-Implementation of the Rome Statute of the International Criminal Court, available at: http://www.iccnow.org/ resourcetools/ratimptoolkit/nationalregionaltools/ legislationdebates.html.
22. SC Res. 955, 8 November 1994, S/RES/1994/955.
23. In its 1996 'International Criminal Tribunals: Handbook for Government Cooperation', Amnesty International reported that Uganda was 'believed to have informed the [ICTY and ICTR] Registrars that they are preparing legislation applicable to both tribunals, or are believed to be preparing such legislation' (August 1996, IOR 40/07/96 at 41). However, there is no indication that such legislation was ever enacted. Despite this, Uganda, along with Benin, Burkina Faso, Cameroon, Côte D'Ivoire, Kenya, Mali, Namibia and Tanzania did arrest and transfer suspects to the ICTR. It could be argued that such legislation was unnecessary due to the fact that the ICTR was created by the Security Council using Chapter VII powers, and Security Council Resolution 955 (1994) states: 'all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal...' (ibid. at para. 2). However, in most legal systems, the authority to execute a request for arrest and surrender, for example, would have to be grounded in domestic legislation giving effect to the international provision.
24. For a more detailed and sophisticated analysis, see: Brownlie, Principles of Public International Law, 6th edn (Oxford: Oxford University Press, 2003) at 31-3
25. Ferrari-Bravo, 'International and Municipal Law: The Complementarity of Legal Systems', in MacDonald and Johnston (eds), The Structure and Process of International Law: Essays in Legal Philosophy and Doctrine and Theory (Dordrecht: Martinus Nijhoff, 1983) 715
26. Starke, 'Monism and Dualism in the Theory of International Law', (1936) 17 British Yearbook of International Law 66;
27. and Morgenstern, 'Judicial Practice and the Supremacy of International Law', (1950) 27 British Yearbook of International Law 42.
28. See Denza, 'The Relationship Between International and National Law', in Evans (ed.), International Law (Oxford: Oxford University Press, 2003) 421 at 422-8 who examines the approach taken by six different countries.
29. See also, Jacobs and Roberts (eds), The Effect of Treaties in Domestic Law (London: Sweet and Maxwell, 1987)
30. and Seidl-Hohenveldern, 'Transformation or Adoption of International Law into Municipal Law', (1963) 12 International and Comparative Law Quarterly 88.
31. For the text of Article 88, see supra Section 1.
32. On this see Duffy, 'National Constitutional Compatibility and the International Criminal Court', (2001) 11 Duke Journal of Comparative and International Law 5
33. Robinson, 'The Rome Statute and its Impact on National Law', in Cassese, Gaeta and Jones (eds),The Rome Statute of the International Criminal Court,Volume II (Oxford: Oxford University Press, 2002) 1849
34. and Venice Commission of the Council of Europe, Report on Constitutional Issues Raised by the Ratification of the Rome Statute of the International Criminal Court, 15 January 2001, CCDL-INF (2001) 1.
35. Ibid. [footnotes omitted].
36. Speech by Serge Brammertz, Deputy Prosecutor, Information session for diplomatic representations, 8 June 2005, Brussels, at 7. For example, a petition, Constitutional Petition No. 10 of 2005, Magezi, Obitre-Gama and Onoria v Attorney-General, was lodged in July 2005 at the Ugandan Constitutional Court alleging that Uganda's ratification of the Rome Statute was unconstitutional. It was further alleged that various provisions of the Rome State were incompatible with constitutional provisions such as those guarding Presidential immunity; protections against further prosecution of persons already acquitted or convicted of the same offence; national pardons; and the granting of amnesties under the Amnesty Act 2000. This petition is still pending judicial determination and Parliament cannot pass any implementing legislation until the matter has been disposed of by the Constitutional Court. [The petitions are on file with the authors.]
37. Mention should be made of the substantial 'Manual for Ratification and Implementation of the Rome Statute' drafted by Rights & Democracy and the International Centre for Criminal Law Reform and Criminal Justice Policy, supported by the Canadian government. This is a comprehensive manual which outlines the potential issues when ratifying and implementing the Rome Statute, providing guidance and examples for solutions to these problems. See 'Manual for Ratification and Implementation of the Rome Statute', 2nd edn (Vancouver, 2003), available at: www.dfait-maeci.gc.ca/foreign_policy/icc/ man_2ed_fin_jy03-en.asp.
38. The members of SADC are: Angola, Botswana, DRC, Lesotho, Malawi, Mauritius, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.
39. For more detail on the SADC efforts, see Nsereko, 'Implementing the ICC Statute within the Southern African Region (SADC)', in Kreß and Lattanzi (eds),The Rome Statute and Domestic Legal Orders I (Baden-Baden: Nomos, 2000) 169.
40. A copy of the text of the draft Act can be found on the disk containing 'ratification/implementing legislation and draft legislation', which accompanies Kreß and Lattanzi (eds), ibid.
41. Nsereko, supra n. 32 at 181.
42. This can be found at: http://www.thecommonwealth.org.
43. For example, the International Criminal Court Bill of Samoa is based almost exclusively on the Commonwealth Model Act. Similarly, Fiji's working draft largely draws upon the Commonwealth Model. [Both drafts are on file with the authors.]
44. See infra for a discussion of these investigations.
45. The International Criminal Court Act 2001, 2001 Ch 17, was passed on 24 September 2001 and entered into force on 17 December 2001. The UK's instrument of ratification was deposited on 4 October 2001 after the Act had been passed.
46. South Africa deposited its instrument of ratification with the UN Secretary-General on 27 November 2000, with the South African parliament passing its implementing legislation two years later on 18 July 2002.
47. As such any amendments to other legislation that are required are also set out in the legislation. See for example, s.39, South African Act. Similarly, cl.174, Kenyan Bill provides for amendment of the Privileges and Immunities Act 1967.
48. 1999 c. 18.
49. Despite the desirability of the existence of an obligation to incorporate the crimes, it should be accepted that none exists in the Rome Statute, nor can it be discerned from customary law. See Kleffner, 'The Impact of Complementarity on National Implementation of Substantive Criminal Law', (2003) 1 Journal of International Criminal Justice 86 at 90-4.
50. However, the possibility of inadequate implementation of the crimes should not be disregarded. This could lead to a situation where the Court seizes jurisdiction as 'unwillingness' or 'inability' may still come into play.
51. See Articles 440-442, Penal Code 1963.
52. See Articles 127, 129-134, 144-145, 153-155 and 168-169, Code of Military Justice 1995.
53. See Articles 79, 301 and 315, Penal Code.
54. See s.3, Geneva Conventions Act 1968.
55. See s.2, Grave Breaches Conventions Act 1957.
56. For example, see Schedule 1, South African Act.
57. For example, see cl.6(4), Kenyan Bill; and cl.7(2), 8(2) and 9(2), Ugandan Bill. Notably cl.(9)(4), Ugandan Bill provides that 'Nothing in this section affects or limits the operation of section (2) of the Geneva Conventions Act (which makes a grave breach of the Geneva Conventions an offence under Uganda law)'. Therefore, if there are any discrepancies between the Rome Statute definitions of grave breaches and those set out in the Geneva Conventions Act, presumably the definitions in the Act would prevail. This provision may also impact on sentencing if the sentences provided for in the Geneva Conventions Act are not the same as those provided for in the Ugandan Bill. See infra for a discussion of sentencing.
58. The relative merits of the definitions of genocide, crimes against humanity and war crimes used in the Rome Statute are not discussed here. Instead, see Schabas, Genocide in International Law: The Crime of Crimes (Cambridge: Cambridge University Press, 2000)
59. Boot, Genocide, Crimes Against Humanity, War Crimes (Antwerp/Oxford/New York: Intersentia, 2002)
60. Schabas, supra n. 1 at 26-66
61. Dörmann, Elements of War Crimes Under the Rome Statute of the International Criminal Court: Sources and Commentary (Cambridge: Cambridge University Press, 2002)
62. Gradizky, 'War Crimes Issues Before the Rome Diplomatic Conference on the Establishment of an International Criminal Court', (1999) 5 University of California at David Journal of International Law and Policy 199
63. and Robinson, 'Defining Crimes Against Humanity at the Rome Conference', (1999) 93 American Journal of International Law 43.
64. Note the Rome Statute uses 'meurtre'.
65. These include: Hague Convention for the Protection of Cultural Property in the Event of an Armed Conflict and its Protocol 1954; UN Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques 1976; Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects 1980, and the first three Protocols thereto; and Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction 1997.
66. It should be noted that setting 15 years of age as the minimum age for recruitment was a compromise at the Rome Conference. See Gradizky, supra n. 53 at 206.
67. See Coalition to Stop the Use of Child Soldiers, Global Report 2004-Congo, Democratic Republic of the, available at: www.child-soldiers.org.
68. The grave breaches set out in Article 8(2)(a), Rome Statute are: Wilful killing; torture or inhuman treatment; wilfully causing great suffering or serious injury to body or health; extensive destruction of property; compelling protected persons to serve in the forces of a hostile power; depriving a prisoner of war of a fair trial; unlawful deportation and the taking of hostages.
69. See Re Piracy Jure Gentium [1934] AC 586, specifically Lord Sankey LC at 589: 'With regard to crimes as defined by international law, the law has no means of trying or punishing them. The recognition of them as constituting crimes and the trial and punishment of criminals are left to the municipal courts of each country.'
70. See Brownlie, Principles of Public International Law, 6th edn (Oxford: Oxford University Press, 2003) 297-318
71. Lowe, 'Jurisdiction', in Evans (ed.), International Law (Oxford: Oxford University Press, 2003) 329
72. Dixon, Textbook on International Law (Oxford: Oxford University Press, 2005) at 132-4
73. and Akehurst, 'Jurisdiction in International Law', (1972-3) 46 British Yearbook of International Law 145.
74. S.4(3), South African Act; cl.18, Ugandan Bill; and cl.8, Kenyan Bill.
75. For a discussion of 'pure' universal jurisdiction, see the joint separate opinion of Judges Higgins, Kooijmans and Buergenthal in Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), available at: http://www.icj-cij.org/icjwww/idocket/iCOBE/icobejudgment/ icobe_ijudgment_20020214_higgins-kooijmans-buergenthal.PDF at paras 19-65, but see particularly paras 53-9.
76. See also O'Keefe,'Universal Jurisdiction: Clarifying the Basic Concept', (2004) 2 Journal of International Criminal Justice 735.
77. Schabas, supra n. 1 at 115.
78. See Article 87(7), Rome Statute. Surrender will be discussed infra.
79. Proposed Article 431-7, Code Penal, as set out in the draft Senegalese crimes legislation; cl.19(1)(a)(vii), Ugandan Bill; Article 15(1), DRC draft legislation; Article 14, Congo (Brazzaville) legislation; and Article 32, Penal Code (Mali).
80. On this, see Akande, 'International Law Immunities and the International Criminal Court', (2004) 98 American Journal of International Law 407.
81. For example, in France the Head of State cannot be prosecuted before the national courts. Therefore, an amendment was made to Article 53-2 of the French Constitution 1958 to recognise the jurisdiction of the ICC so that any proceedings against the Head of State can take place internationally at the Court. See Buchet, 'L'intégration en France de la Convention portent Statut de la Cour Pénale Internationale: Histoire brève et inachevée d'une mutation attendue', in Krß and Lattanzi (eds), supra n. 32 at 65.
82. The UK International Criminal Court Act 2001 does not allow for prosecution of the head of State (i.e. the Queen) and proceedings would have to take place at the ICC. See Cryer,'Implementation of the International Criminal Court Act in England andWales', (2002) 51 International and Comparative Law Quarterly 733 at 737-9.
83. Immunities and their impact on the surrender process shall be discussed infra.
84. Section 4(2), South African Act.
85. Ibid.
86. Article 15(2), DRC draft legislation.
87. Article 101, Constitution of Senegal; and Article 98(4), Ugandan Constitution. Constitutional Petition No. 10, supra n. 29, raises the question of compatibility of immunities conferred by the Ugandan constitution and the Ugandan Bill.
88. Comments to authors from the Senegalese participant at the ICC Training Course.
89. Article 25(3)(a), Rome Statute.
90. Articles 25(3)(b) and 25(3)(c), Rome Statute.
91. Article 25(3)(e), Rome Statute.
92. Article 25(3)(d), Rome Statute.
93. Article 25(3)(f), Rome Statute.
94. See Robinson, supra n. 27.
95. See Bantekas, 'The Contemporary Law of Superior Responsibility', (1999) 93 American Journal of International Law 573
96. Damska, 'The Shadow Side of Command Responsibility', (2001) 49 American Journal of Comparative Law 455
97. Green, 'Command Responsibility in International Law', (1995) 5 Transnational Law and Contemporary Problems 319
98. Vetter, 'Command Responsibility of Non-Military Superiors in the International Criminal Court (ICC)', (2000) 25 Yale Journal of International Law 89
99. and Ambos, 'Individual Criminal Responsibility in International Criminal Law', in McDonald and Swaak-Goldman (eds), Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts (The Hague: Kluwer, 2000) 1.
100. The slight differences in wording are due to domestic implementation rather than any attempt to change the wording of the Article.
101. See generally, Ambos, 'General Principles of Criminal Law in the Rome Statute', (1999) 10 Criminal Law Forum 1.
102. See cl.19(1)(a)(vi), Ugandan Bill; and cl.7(1)(f), Kenyan Bill.
103. See Robinson, supra n. 27 at 1864-6.
104. Article 11, DRC draft legislation.
105. Article 17(2)(a), Rome Statute.
106. See proposed Article 431-10, Code Pénal, as set out in the draft Senegalese crimes legislation.
107. Nouveau Code Pénal du Sénégal Annoté (Dakar: EDJA, 2000).
108. Titre Deuxième, Section IV, ibid.
109. Article 309, ibid.
110. Article 310, ibid.
111. Article 311, ibid.
112. Article 312, ibid.
113. Article 313, ibid.
114. Article 316, ibid. Moreover, Article 317 contains two instances where self-defence or defence of others would apply: One would be the 'homeowners' defence' and the other in case of defence against the perpetrators of thefts or pillages who used violence.
115. Article 77(1)(a), Rome Statute.
116. Article 77(1)(b), ibid.
117. Article 77(2)(a), ibid.; Rule 146, Rules of Procedure and Evidence.
118. Article 77(2)(b), ibid.; Rules 147 and 218, Rules of Procedure and Evidence.
119. For a fuller discussion of the penalties envisaged under the Rome Statute, see Schabas, supra n.1 at 162-71
120. Fife, 'Penalities', in Lee (ed.), The International Criminal Court: The Making of the Rome Statute (The Hague: Kluwer, 1999) 319
121. and Henham, 'Some Issues of Sentencing in the International Criminal Court', (2003) 52 International and Comparative Law Quarterly 81.
122. This was the subject of heated debate at the Rome Conference. See Bantekas and Hodgkinson, 'Capital Punishment at the United Nations: Recent Developments', (2000) 11 Criminal Law Forum 23.
123. Proposed Articles 221 and 222, Code Pénal as set out in the DRC draft legislation provide for the death penalty for genocide and crimes against humanity (except for imprisonment and persecution).
124. Cl.6(3)(a), Kenyan Bill provides that if intentional killing is involved in the crime, then the penalty should be the same as that for murder, which is death. However, according to Amnesty International Kenya is a de facto abolitionist State and has not executed anyone in the last 10 years.
125. Article 431-6, draft Senegalese crimes legislation provides that if intentional killing is involved in the crime then the penalty is death.
126. Cl.7(3)(a), 8(3)(a) and 9(3)(a), Ugandan Bill provide that if intentional killing is involved in the crime, then the penalty should be the same as that for murder, which is death.
127. Articles 2, 5 and 7, Congo (Brazzaville) legislation, provide for the death penalty for genocide, war crimes and certain crimes against humanity.
128. On this, see Schabas, The Abolition of the Death Penalty in International Law, 3rd edn (Cambridge: Cambridge University Press, 2002).
129. The Statute of the Special Court is available at: www.sc-sl.org.
130. Article 93(1) requires States Parties to assist with the identification and location of witnesses and evidence; the taking of evidence; the questioning of persons; service of documents; facilitating voluntary appearance of witnesses or experts before the Court; temporary transfer of persons; examination of places or sites; execution of searches and seizures; provisions of records and documents; protection of victims, witnesses and evidence; identification, tracing and freezing or seizure of proceeds of crime; and to give 'any other type of assistance which is not prohibited by the law of the requested State' (Article 93(1)(l) [emphasis added]).
131. Pursuant to Article 13, Rome Statute, there are three possible mechanisms for triggering an investigation by the Prosecutor: (1) a State Party referral; (2) a Security Council referral; or (3) a proprio motu investigation by Prosecutor.
132. The current Chief Prosecutor of the Court is Luis Moreno-Ocampo.
133. See ICC Press Release, 'President of Uganda refers situation concerning the Lord's Resistance Army (LRA) to the ICC', 29 January 2004, ICC-20040129-44-En.
134. ICC Press Release, 'Prosecutor of the International Criminal Court opens an investigation into Northern Uganda', 29 July 2004, ICC-20040729-65-En.
135. ICC Press Release, 'Prosecutor receives referral of the situation in the Democratic Republic of Congo', 19 April 2004, ICC-OTP-20040419-50-En.
136. See ICC Press Release, 'The Office of the Prosecutor of the International Criminal Court opens its first investigation', 23 June 2004, ICC-OTP-20040623-59-En.
137. See ICC Press Release, 'Prosecutor receives referral concerning Central African Republic', 7 January 2005, ICC_OTP-20050107-86-En.
138. Article 54(1), Rome Statute.
139. Article 54(3), Rome Statute.
140. With the exception of the very limited right of the Prosecutor to execute a cooperation request without the use of any compulsory measures under Article 99(4), Rome Statute.
141. Article 89, Rome Statute.
142. A number of States examined in this study envisage incorporation of the potential requests above in their implementing legislation pieces. See s.14-30 South African Act; cl.43-63 Ugandan Bill; cl.76-118 Kenyan Bill; and Proposed Article 47-8, DRC Code de Procédure Pénale.
143. See cl.43-59, 62 and 63, Ugandan Bill.
144. Proposed Article 47-8, Code de Procédure Pénale.
145. See Speech by Serge Brammertz, Deputy Prosecutor, Information session for diplomatic representations, 8 June 2005, at 10.
146. Ibid. at 7.
147. Assembly of States Parties, Report on the Activities of the Court, 16 September 2005, ICC-ASP/4/16 at para. 10.
148. See supra n. 20.
149. The agreement provides: 'Conformément des dispositions du chapitre IX du Statut de Rome, la République Démocratique du Congo coopère pleinement avec le Bureau du Procureur. En particulier, la République Démocratique du Congo fait en sorte que la loi nationale prévoit et organise les procédures nationales neécessaires a toutes les formes de coopération...
150. Fifth Diplomatic Briefing of the International Criminal Court, Compilation of Statements, 26 October 2005, at 8.
151. Article 63, Rome Statute.
152. Articles 89-92, Rome Statute.
153. The arrest warrant was unsealed pursuant to a decision of Pre-Trial Chamber I. See Prosecutor v Thomas Lubanga Dyilo, Decision to Unseal the Warrant Of Arrest Against Mr Thomas Lubanga Dyilo, Pre-Trial Chamber I, 17 March 2006, ICC-01/04-01/06-37.
154. Articles 8(2)(b)(xxvi) and 8(2)(e)(vii), Rome Statute. See Warrant of Arrest, 10 February 2006, ICC-01/04-01/06-2.
155. See the Prosecution's Response to Application for Release, 13 June 2006, ICC-01/04-01/06-150 at paras 17-20. See infra for a discussion of what is required by the Rome Statute.
156. The warrants of arrest were issued under seal on 8 July 2005 to protect victims and potential witnesses. They were unsealed on 13 October 2005. See ICC Press Release, 'Warrant of Arrest Unsealed Against Five LRA Commanders', 14 October 2005, ICC_20041014-110-En. The wanted commanders have been named as: Joseph Kony, Vinvent Otti, Rask Lukwiya, Okot Ojiambo and Dominic Ongwen. Of the five wanted men, it is believed that Kony, Lukwiya and Ojiambo have all fled to Sudan. Notably Sudan has given permission to the Ugandan army to pursue the wanted individuals on Sudanese territory. Otti is believed to be in North East Congo, whilst it has been reported that Ongwen was killed in Northern Uganda.
157. As opposed to a summons which will be issued where it is understood that this will be enough to secure the individual's presence at the Court. Article 58(7), Rome Statute.
158. Article 89(1), Rome Statute.
159. Ibid.
160. See Swart and Sluiter, 'The ICC and International Criminal Co-Operation', in von Hebel, Lammers andSchukking (eds), Reflections on the International Criminal Court (The Hague: T.M.C. Asser Press, 1999) 91 at 97-105.
161. See Kim, 'The Cooperation of a State to Establish an Effective Permanent International Criminal Court', (1997) 6 Journal of International Law and Practice 157 at 165.
162. Article 102 reads: 'For the purposes of this Statute: (a) "surrender"means the delivering up of a person by a State to the Court, pursuant to this Statute. (b) "extradition" means the delivering up of a person by one State to another as provided by treaty, convention or national legislation.'
163. Extradition Act 1999, especially Chapter 18. See Oosterveld, Perry and McManus, 'The Cooperation of States with the International Criminal Court', (2002) 25 Fordham International Law Journal 767.
164. See cl.33, Ugandan Bill; s.10, South African Act; cl.39, Kenyan Bill; proposed Article 677-22, Code de Procédure Pénale as set out in the draft Senegalese cooperation legislation; and Article 43, DRC draft legislation.
165. There have been a number of instances before the ICTY where the legality of arrest has been challenged. See Prosecutor v Dragan Nikolic, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, 9 October 2002, IT-94-AR72
166. Prosecutor v Dragan Nikolic, Decision on Interlocutory Appeal Concerning the Legality of Arrest, 5 June 2003, IT-94-2-AR73
167. and Prosecutor v Slobodan Milosevic, Decision on Preliminary Motions, 8 November 2001, at para. 38.
168. Furthermore, in Prosecutor v Radislav Brdanin, the defendant's application for a writ of habeas corpus was rejected as the ICTY considered that it did not have such powers. Rather the Tribunal asserted that it 'has both the power and the procedure to resolve a challenge to the lawfulness of a detainee's detention.'
169. Prosecutor v Radoslav Brdanin, Decision on Petition for a Writ of Habeas Corpus on Behalf of Radoslav Brdanin, 8 December 1999, at paras 4-6.
170. See also the response of the ICTR to irregularities in arrest in Barayagwiza v Prosecutor, Decisions, 3 November 1999 and 31 March 2000, ICTR-97-19-AR72, where the Tribunal ruled that a person unlawfully detained may be entitled to a stay of proceedings and release in extreme circumstances, and in lesser circumstances either a reduction in sentence if found guilty, or financial compensation if released.
171. See Defence Application for Release, 23 May 2006, ICC-01/04-01/06; and the Prosecutor's Response to Application for Release, 13 June 2006, ICC-01/04-01/06.
172. Prosecutor's Reponse, ibid. at para. 11.
173. See Ker v Illinois 119 US 436
174. and Frisbie v Collins 342 US 519.
175. See, inter alia, Ex parte Susannah Scott 109 ER 166
176. R v O/C Depot Battalion R.A.S.C. Colchester, ex parte Eliot [1949] 1 All ER 373
177. R v Plymouth Justices, ex parte Driver [1986] QB 95
178. Liangsiriprasert v United States [1991] 1 AC 225
179. and re Schmidt [1995] 1 AC 339.
180. Levinge v Director of Custodial Services 9 NSWLR 546
181. See, inter alia, re Argoud 45 ILR 90
182. and Fédération Nationale des Déportés et Internes Résistants et Patriotes and Others v Barbie 78 ILR 124.
183. Attorney General v Eichmann 36 ILR 5 (1961)
184. and Afouneh v Attorney General (1941-1942) 10 Annual Digest 327. However, Eichmann should not be considered as a good example because of the crimes involved.
185. Green, 'The Eichmann Case', (1960) 23 Modern Law Review 507 at 514-5.
186. The District Court of Jerusalem rejected the objection on jurisdiction raised by the counsel for Eichmann and held that 'a person standing trial for an offence against the laws of a state may not oppose his being tried by reason of the illegality of his arrest, or of the means whereby he was brought to the area of jurisdiction of the state'. See Eichmann, ibid. at para. 41.
187. United States v Alvarez Machain 504 US 655 at 669 which found that US courts had jurisdiction to try an individual forcibly abducted from Mexico without his consent.
188. See inter alia, Scharf, 'The Tools for Enforcing International Criminal Justice in the New Millennium: Lessons from the Yugoslavia Tribunal', (2000) 49 DePaul Law Review 925 at 968-9
189. Choo, 'Ex Parte Bennett: The Demise of the Male Captus, Bene Detentus Doctrine in England?', (1994) 5 Criminal Law Forum 165
190. and Warbrick, 'Judicial Jurisdiction and Abuse of Process', (2000) 49 International and Comparative Law Quarterly 489.
191. R v Horseferry Road Magistrates, ex parte Bennett [1994] 1 AC 42, where by a vote four to one the Law Lords found that English courts have the discretion to stay the trial of a criminal defendant where English police have disregarded the protections of formal extradition and have had a defendant seized abroad by illegal means.
192. United States v Toscanino 500 F 2d 267, where the Court held: '[we] view due process as now requiring a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the Government's deliberate unnecessary and unreasonable invasion of the accused's constitutional rights'.
193. This approach was relied upon in Prosecutor v Dokmanović, Decision on the Motion for Release by the Accused Dokmanović, Trial Chamber II, 22 October 1997, IT-95-13a-PT at paras 70-5.
194. (1967) 66 Blatter fur Zurcherische Rspr 248.
195. The Supreme Court of Costa Rica unanimously censured the Alvarez-Machain decision of the US Supreme Court in its plenary session of 25 June 1992. See statement quoted in Wilske and Schiller, 'Jurisdiction over Persons Abducted in Violation of International Law in the Aftermath of United States v. Alvarez-Machain', (1998) 5 University of Chicago Law School Roundtable 205 at 229.
196. State v Ebrahim (1992) 31 International Legal Materials 888.
197. State v Beahan 1992 (1) SACR 307 (A).
198. Supra n. 156.
199. Cl.30(4), Ugandan Bill. The Ugandan approach is similar to that taken by the UK government in s.5(2) of the International Criminal Court Act 2001. See Cryer, supra n. 65 at 737.
200. Article 85(1) of the Rome Statute provides that: 'Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.' See also Rules 173-175, Rules of Procedure and Evidence.
201. Rule 58, ICTY and the ICTR RPE, assert, rather authoritatively, that a Tribunal request prevails over extradition and could be used as a basis for dealing with competing extradition requests as well.
202. Article 90(2)(a), Rome Statute.
203. Article 90(3), Rome Statute. Therefore, it is key that a State notifies the Court of any competing requests as soon as possible so that the Court can ensure it deals with admissibility issues quickly and under its expedited procedure if necessary. See Article 90(1), Rome Statute.
204. Article 90(6), Rome Statute.
205. See, for example, Article 17, European Convention on Extradition 1957, 359 UNTS 273; and Article 16, United Nations Model Treaty on Extradition 1990, A/CONF.144/28/Rev.1.
206. However, Cassese argues for primacy of the Court as it is a'universal criminal court', and its constituent Statute's purpose is to 'administer justice in the interest of peace'. See Cassese, International Criminal Law (Oxford: Oxford University Press, 2003) at 359 [emphasis in original].
207. Article 90(4), Rome Statute.
208. See cl.42, Ugandan Bill; and cl.57-62, Kenyan Bill.
209. See Proposed Article 677-25, Code de Procédure Pénale, as set out in the draft Senegalese cooperation legislation.
210. Problems may arise if an initially admissible case is appealed in accordance with Article 19(6) in conjunction with Article 82(1)(a), Rome Statute.
211. However, according to one view, this should not be applied to an affirmative ruling by the Court which has subsequently been the object of an appeal. See Kreß and Prost, 'Surrender of Persons to the Court', in Triffterer (ed.), Commentary on the Rome Statute of the
212. Article 95, Rome Statute.
213. See cl.28(2)-29(6), Ugandan Bill.
214. Note that the request for cooperation 'may' be postponed, as opposed to a strict obligation to postpone.
215. Article 98(1) provides: 'The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of immunity.'
216. Cl.24(6), Ugandan Bill states that if the Minister for Justice believes that Article 98 is applicable in a given situation, then he 'shall' consult with the Court as to whether it actually does or not. It is assumed that both cl.24(6) and cl.28(1)(c) were inserted into the Bill because Uganda signed a Bilateral Immunity Agreement with the United States on 12 June 2003. See infra for a discussion of Bilateral Immunity Agreements.
217. See cl.52(2), Kenyan Bill.
218. Emphasis added.
219. Cl.52(5), Kenyan Bill.
220. Proposed Article 677-24(2), Code de Procédure pénale, as set out in the draft Senegalese cooperation legislation. A similar provision is proposed Article 47-5, DRC Code de Procédure Pénale.
221. It should be noted that the Rome Statue does provide for refusal to cooperate with the ICC, but this is to be in accordance with strictly defined provisions in the Statute and is limited to requests for cooperation other than arrest and surrender.
222. This was the position of the Federal Republic of Yugoslavia which refused cooperation with the ICTY on the grounds of failing to enact implementing legislation. See Fourth ICTY Annual Report, 18 September 1997, A/52/375-S/1997/729 at para. 150
223. Amnesty Act 2000. See Ssenyonjo, 'Accountability of Non-State Actors in Uganda for War Crimes and Human Rights Violations: Between Amnesty and the International Criminal Court', (2005) 10 Journal of Conflict and Security Law 405
224. and Moy, 'The International Criminal Court's Arrest Warrants and Uganda's Lord's Resistance Army: Renewing the Debate Over Amnesty and Complementarity', (2006) 19 Harvard Human Rights Law Journal 267.
225. '"Amnesty" for Uganda Rebel Chief', 4 July 2006, BBC News Online.
226. See 'Statement by the Chief Prosecutor Luis Moreno-Ocampo', 12 July 2006, ICC-OTP-20060712-149-En.
227. It has been argued that Article 98(2) only applies to agreements between States Parties to the Rome Statute. See Internal Opinion of the EC Commission Legal Service, 'Effective Functioning of the International Criminal Court undermined by Bilateral Agreements as Proposed by the US', (2002) 23 Human Rights Law Journal 158.
228. However, this cannot be correct. See the discussion in Akande, 'The Basis of and Limits to the Jurisdiction of the International Criminal Court over Nationals of Non-Parties', (2003) 1 Journal of International Criminal Justice 618 at 643-4.
229. Article 27, Rome Statute.
230. For more information on BIAs see: http://www.iccnow.org/documents/ USandICC/BIAs.html.
231. An examination of such agreements is beyond the scope of this article. See, generally, Akande, supra n. 64
232. Akande, supra n. 186
233. Wirth, 'Immunities, Related Problems and Article 98 of the Rome Statute', (2001) 12 Criminal Law Forum 429
234. and Meiß ner, Die Zusammenarbeit mit dem Internationalen Strafgerichtshof nach dem Römischen Statut (München: Verlag C H Beck, 2003) at 119-34.
235. Article 98(2) reads in part: 'The Court may not proceed with a request for surrender which would require the requested state to act inconsistently with its obligations under international agreements pursuant to which the consent of the sending state is required to surrender a person of that state to the Court....'
236. Under such agreements, the members of armed forces of a third State may be present on the territory of a requested State.
237. Akande, supra n. 186 at 645. See also the preceding discussion, ibid. at 643-5.
238. See also the preceding discussion, ibid. at 643-5.
239. African States Parties to the Rome Statute who have concluded a BIA with the United States are: Benin, Botswana, Burkina Faso, Burundi, Central African Republic, Congo (Brazzaville), DRC, Djibouti, Gabon, Gambia, Ghana, Guinea, Liberia, Malawi, Mauritius, Nigeria, Senegal, Sierra Leone, Uganda and Zambia. Non-States Parties from the African region who have concluded BIAs are: Angola, Cameroon, Cape Verde, Chad, Comoros, Equatorial Guinea, Eritrea, Ethiopia, Côte D'Ivoire, Madagascar, Mauritania, Mozambique, Rwanda, Sao Tome and Principe, Seychelles and Togo. Information on which States have signed a BIA can be found at: http://www.iccnow.org/documents/USandICC/ASPA.html.
240. In August 2002, the US Congress passed the American Service Members Protection Act, which, inter alia, restricts US cooperation with the Court; restricts US participation in certain international peacekeeping operations; prohibits military assistance to parties to the Rome Statute; and authorises the President to take all necessary measures to free any US citizen imprisoned by the Court. The President has the ability to waive the provisions prohibiting military assistance if (a) it is in the national interest of the US; (b) if the State has signed a BIA; or (c) if the State is a member of NATO or a major non-NATO ally.
241. With regard to the UN Mission in Liberia.
242. In December 2004, the US Congress adopted the Nethercutt Amendment to the Foreign Operations, Export Financing and Related Programs Appropriations Act 2005, which prohibited financial assistance being provided to any State that was a party to the Rome Statute and had not signed a BIA with the United States.
243. SC Res. 1564, 18 September 2004, S/RES/1564 (2004).
244. Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005, at paras 568 et seq. For more information and discussion of the Report see Byron, 'Comment on the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General', (2005) 5 Human Rights Law Review 351.
245. SC Res. 1593, 31 March 2005, A/RES/1593 (2005).
246. Article 13(b), Rome Statute gives the Security Council an express power to refer cases to the Prosecutor in a 'situation in which one or more of such crimes appears to have been committed'.
247. These names were not made public in the Report. See Report of the International Commission, supra n. 198 at paras 525-9.
248. See Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593 (2005) at 2.
249. Report of the International Commission, supra n. 198 at paras 489-522.
250. This is in direct contrast to the comments of the US President in September 2004, who labelled the Darfur crisis genocide. See White House Press Release, 'Statement by the President on Violence in Darfur, Sudan', 9 September 2004.
251. Report of the International Commission, ibid. at paras 237-418.
252. Report of the Prosecutor, supra n. 202 at 2.
253. Report of the Special Rapporteur on the human rights situation in the Sudan, 11 January 2006, E/CN.4/2006/111 at para. 47.
254. In the case of members of the armed forces, prosecution is at the discretion of the General Commander. See ibid. at para. 49.
255. See infra for a discussion of this referral.
256. Address by Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, to the United Nations Security Council, 13 December 2005 at 4.
257. See the comments of the Prosecutor, ibid. at 3. In particular: 'In accordance with Article 53(2)(b) of the Statute, the legal test is specific to the cases selected for prosecution, and not the state of the Sudanese judicial system as a whole.'
258. Further initiatives to secure justice in Sudan have been undertaken. In particular, various committees were established to investigate alleged violations of human rights and international humanitarian law committed during particular attacks by the Governor of Southern Darfur. However, the Special Rapporteur has condemned these as 'suffering from serious shortcomings' including a 'lack of transparency in methodology and outcome, inadequate investigations, a lack of impartiality and a failure to address state responsibility for the attacks.' See Special Rapporteur report, supra n. 184 at para. 48.
259. See ICC Press Release, 'The Prosecutor of the ICC opens an investigation in Darfur', 6 June 2005, OTP/LSU/o66-05.
260. See supra n. 131.
261. 31 March 2005, S/PV.5158.
262. Address to the United Nations Security Council, supra n. 209 at 7.
263. FCO Press Release,'UK Government Statement on International Criminal Court and Sudan', 14 December 2005. However, the Office of the Prosecutor has conducted investigations and interviews with witnesses outside Sudan relating to the situation in Darfur.
264. This is reminiscent of the opinion of the ICTY Appeals Chamber in Prosecutor v Blaskic, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoena Duces Tecum, 18 July 1997, IT-95-14-PT. The Appeals Chamber stated: 'the International Tribunal is not vested with any enforcement or sanctionary powers vis-á-vis States.... However, the International Tribunal is endowed with the inherent power to make a judicial finding concerning a State's failure to observe the provisions of the Statute or the Rules.' (at para. 33).
265. Para. 2, SC Res. 1593, supra n. 199 [emphasis added].
266. SC Res. 827, 25 May 1993, S/RES/1993/827 at para. 4.
267. SC Res. 955, 8 November 1994, S/RES/1994/955 at para. 2.
268. See Statement by the President of the Security Council, 8 May 1996, S/ PRST/1996/23; and Statement by the President of the Security Council, 8 August 1996, S/PRST/1996/34, both of which condemn the Federal Republic of Yugoslavia's lack of cooperation with the ICTY.
269. See SC Res. 1207, 17 November 1998, S/RES/1207 (1998). Para. 3 of the Resolution reads: 'Condemns the failure to date of the Federal Republic of Yugoslavia to execute the arrest warrants issued by the Tribunal against the three individuals' referred to in the letter of 8 September 1998, and demands the immediate and unconditional execution of these arrest warrants, including the transfer to the custody of the Tribunal of those individuals.'
270. It is reported that the Office of the Prosecutor has received 1732 communications from individuals and groups to investigate alleged crimes in 139 countries in all regions of the world. However, 80% of these communications have been found to be manifestly outside the jurisdiction of the Court. Two situations relating to events in Venezuela and Iraq were subjected to intensive analysis and then found not to warrant an investigation by the Court. See 'Update on Communications Received by the Prosecutor', 10 February 2006, and its Annexes.