Selective Enforcement and International Criminal Law : the International Criminal Court and Africa / James Nyawo.
2017
KZ7312 .N93 2017 (Map It)
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Details
Author
Title
Selective Enforcement and International Criminal Law : the International Criminal Court and Africa / James Nyawo.
Published
Cambridge, United Kingdom : Intersentia, [2017]
Call Number
KZ7312 .N93 2017
ISBN
9781780683874 (paperback)
1780683871
1780683871
Description
xiii, 288 pages : illustrations ; 25 cm.
System Control No.
(OCoLC)963352427
Summary
"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 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 it has morphed and ceased to be an independent legal institution instead becoming a political tool utilised 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 merely officially opening investigations and prosecutions in Africa. Although this book recognises that selective implementation of criminal justice is acceptable both at the domestic and international level, it analyses 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." -- Back cover.
Note
"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 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 it has morphed and ceased to be an independent legal institution instead becoming a political tool utilised 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 merely officially opening investigations and prosecutions in Africa. Although this book recognises that selective implementation of criminal justice is acceptable both at the domestic and international level, it analyses 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." -- Back cover.
Bibliography, etc. Note
Includes bibliographical reference (pages 271-282) and index.
Record Appears in
Gift
Purchased from the income of the African Law Center Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the African Law Center Fund
Table of Contents
Preface
vii
Acknowledgements
ix
ch. 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
ch. 2
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.
Court in the Global Governance System
51
2.4.
Seat of the Court
55
ch. 3
Office of the Prosecutor and the Politics of Selecting Targets for Prosecution
57
3.1.
US's Paranoia over the Politicisation of the Court and its Possible Impact on the Prosecutorial Strategy
60
3.2.
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.
AU Strikes Back at the Prosecutor
93
ch. 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.
UN Security Council Referral
101
4.4.
State Party Referral
106
4.5.
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
ch. 5
Assessing Selective Enforcement from an Admissibility Perspective
133
5.1.
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.
Admissibility of Situations Referred by the UN Security Council
171
5.8.
Admissibility of Situations Opened by the Prosecutor under Article 15 Powers
178
5.9.
Gravity
182
ch. 6
AU and African States' Shift from Cooperation to Non-Cooperation with the Court
187
6.1.
Uneasy Encounter Between the AU and the Court in Darfur
194
6.2.
Jilted Lover's Response: Africa's Deteriorating Relationship with the Court - the Aftermath of 4 March 2009
204
ch. 7
African States' Reaction to the AU's Call for Non-Cooperation 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.
Attempt to Amend Article 16: The Push for a Power Shift from the UN Security Council to the UN General Assembly
243
7.6.
AU's Proposed Alternative Juridical Mechanisms to Curb the Court's 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
ch. 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.
Court's Internal Control Mechanisms Should be a Source of Confidence for the States
256
8.1.3.
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.
Pitfalls of Limited Promotion of Institutions Rooted in Progressive African Values, History and Philosophy
265
8.2.
Prospects
268
8.2.1.
Court's Fortunes are Likely to Depend on the Political and Economic Situation in the EU
268
8.2.2.
Regionalisation of the Court for Visibility and Efficiency
269
8.2.3.
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