THE OBLIGATION OF MEMBER NATIONS (STATES PARTIES)

OF THE ICC; ROME STATUTE AND INTERNATIONAL

CRIMINAL JUSTICE:
INTERNATIONAL OBLIGATIONS IN PROMOTING
INTERNATIONAL CRIMINAL JUSTICE:
State parties to the Rome Statute of the International Criminal Court are
those sovereign states that have ratified or acceded to the Rome Statute of
International Criminal Court, theTreaty that established the International
Criminal Court.
On July 17 1998, the International Criminal Courts Treaty was adopted in a
United Nations (UN) sponsored plenipotentiary conference in Rome Statute.1
The Rome Statute entered into force on 1 July 20022. As of May 2013, 122
states are state parties to the Statute (have ratified the Rome Statute) out of
which 34 are from African Continent.3
The International Criminal Court has the jurisdiction to hold accountable
those responsible for the crimes of genocide, war crimes, and crimes against
humanity.4
1. See Rome Statute of International Criminal Court; U.N DOC. A/ CONF. 183/9 of 17 th
July 1998. For the back ground history on the establishment of the ICC see generally
RLee, (ed) (1999) The International Criminal Court.
2 . Article 126(1) of The Rome Statute provides that This Statute shall enter into
force on the first dayof the month after the 60 th day following the date of the
deposit of the 60th Instrument of ratification, acceptance, approval or accession with
the Secretary General of the United Nations.
3 . Seychelles became the 31st African Country to deposit its instrument of
ratification with the UN on 10th August, 2010. See UN Treaty Collection Database
available online at htt:// treaties.un.org/pages/CNs.aspx( accessed 11 th August
2010).
4 . other countries under analysis for possible prosecution include Afghanistan,
Georgia, Guinea, Cote dvoire, Colombia and Palestine. See The International
Criminal Court, situations and cases http://www.ICC-CPI.int/menus/ICC/structure
of the Court/ office of the prosecutor/(accessed) 11th August 2010.

The Court (ICC) can automatically exercise jurisdiction over crimes

committed on the territory of a state party or by a national of a state party.

GENERAL OBLIGATION TO COOPERATE WITH THE

COURT(ICC):
Under Article 86 of The Rome Statute of the International Criminal
Court, state parties have an obligation to cooperate with the Court in its
investigation, arrest, surrender, evidence gathering and prosecution of
crimes within the jurisdiction of the court.5
The ICC may submit requests to any state for the arrest and surrender of a
person found in the states territory. Under Article 89(1)6; state parties are
obliged to comply with such requests transmitted by the courts such
requests must be executed in accordance with the provisions of the statute
and the states national laws.
State parties agree in Article 88 of The Rome Statute to ensure that
there are procedures available under their national law for all forms of
cooperation listed in part 9 of the Statute. Therefore, are obliged to ensure
that there are procedures available under their national law for all forms of
cooperation. In order for the International Criminal Court to be fully effective,
member states to the Rome Statute have to adopt national legislation
enabling cooperation with the court. This legislative process is referred to as
the implementation into national law of the cooperation provisions of the
statute.
Implementing international legislation within domestic systems is crucial to
the success of international criminal justice which aims to establish a system
of international criminal law where domestic jurisdictions are primarily
responsible for and capable of prosecuting international crimes.
South Africa has acceded to the idea of International Criminal Justice, both
indirectly by way of its Constitution, which provides for, and regulates, the
5. Kenya is an example of one of the country that has refused to cooperate with the
ICC in the investigation, prosecution of its top leaders. And in September 2013,
Kenyas National Assembly voted to withdraw from the ICC in protest against the
ICC investigation in Kenya though the decision is not final. See Kenya Mps vote to
withdraw from ICC BBC. 2013-0-05. Retrieved 2013-09-11.
6 . of the Rome Statute of International Criminal Court.

domestic application of international law and directly through national

legislation. The implementation of the Rome Statute of the International
Criminal Court has transformed the crimes of the Rome Statute into South
African Criminal law. The recent South African judgment in;
SOUTHERN AFRICA LITIGATION CENTRE AND ANOTHER VS NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS7
The case is a good example of how domestic obligations towards
International Criminal Justice can serve to promote the values of
international Community on the domestic level.
The case concerned an application for judicial review of a decision by the
South African police service(SAPS) not to institute investigation to crimes
against humanity or torture( International crimes) in terms of the Rome
Statute committed in Zimbabwe.
The Court directed the (SAPS)8 to conduct investigation into the matter. The
judgment affirms the ICC Act as part of national frame work of criminal law
that represents an effort to address those crimes which domestic criminal
justice systems are unable or unwilling to address.
The duty to investigate under the ICC Act9 in the above judgment, South
Africa has broadened the scope of application of its domestic Criminal Justice
system with the effect of benefiting both its own citizens and the
International Community.
The purpose of ICC implementing legislation is two-fold. To place states
parties in position to cooperate with the Court (ICC); and to place them in
position to exercise national jurisdiction in lieu of the court10
State party must recognize immunities or a statute of limitation for crimes over
which the ICC may have jurisdiction. A state is obliged to comply with the request
7. 17150/09) [ 2012] ZAGPPHC 61;2012(10) BCLR 1089(GNP),[2012] 3All SA 198
(GNP)(8 May) (2012)
8 .South African Police Service
9 . The Rome Statute of International Criminal Court, of 17 th July 1998
10 . Referred to as complementarity legislation.

for arrest and surrender even if the person in question enjoys official capacity;
including head of state.

Therefore all state parties are expected to implement relevant provisions of

the Rome Statute into national law. The Rome Statute contains very technical
obligations for states parties or those which would normally only require
ratification of a treaty to make it legally binding, must adopt implementing
legislation.
EXEPTION TO THE GENERAL OBLIGATION TO COOPERATE:
Although the Rome Statute imposes an obligation for states parties to the
Rome Statute to cooperate with International Criminal Court, it also provides
many exceptions to that general obligation to cooperate.
The obligation to surrender, the Rome Statute permits a suspension of this
obligation where a challenge of admissibility is made. An example is where a
state is not state party to the Rome Statute. Libya is not a party to the Rome
Statute, and is therefore not bound by that treaty and doesnt have rights as
such under the treaty.
Any obligation that Libya has with regard to the International Criminal Court
must be derived from the Security Council Resolution which refers the Libyan
situation to the ICC.
The question was raised in 2011 as to whether Libya was under an obligation
to surrender Saif Gaddafi to the ICC? Has the UN Security Council imposed
different obligations of cooperation from the Rome Statute.
GoranSluiter in 2008, also raised the same question as to whether the
Security Council may modify the cooperation obligations provided for in the
Statute shortly after the Sudan referral in an article entitled obtaining
cooperation from Sudan; where is the law?
Professor Sluiter noted that the way in which the Security Council had framed
Sudans obligation of cooperation with the ICC left it unclear whether Sudan
could invoke grounds for refusing cooperation which were provided for in the
Statute.
Therefore, the Council can impose obligations on states which go beyond
what the Rome Statute has imposed. The powers of the Council Security
Council are not limited by the Rome Statute. Its powers are not determined
by the Rome Statute.

The Court also determines the admissibility of a case through a judicial

assessment.
Article 17(1) of The Rome Statute11, provides that Court shall determine that
a case is inadmissible where;
a) The case is being investigated or prosecuted by a state which has jurisdiction
over it, unless the state is unwilling or unable to carry out the investigation or
prosecution;
b) The case has been investigated by a state which has jurisdiction over it and
the state has decided not to prosecute the person concerned, unless the
decision resulted from the unwillingness or inability of the state genuinely to
prosecute;
Therefore, a case should not continue before the ICC when it is being investigated
or prosecuted by a state with jurisdiction.
Even where serious international crimes have been committed, a case would not be
admissible if the state concerned was conducting genuine domestic proceeding.
On the March 2009, the ICC ruled that Courts case a against Uganda rebel leader
Joseph Kony and his commanders should continue before the ICC, despite
arguments that Uganda should be allowed to prosecute the case using transitional
justice mechanisms that it has been developing. The courts decision on
admissibility referred to Article 17 of the statute, that a case should not continue
before the ICC when it is investigated or prosecuted by a state with jurisdiction.
The pre-trial Chamber, in its decision to retain jurisdiction stated that pending the
adoption of all relevant legal texts and practical implementation of the agreement
reached at Juba, the scenario against which the admissibility of the case has to be
measured remained the same as that at the time the warrants were issued

The ICCs formal involvement in Kenya began on March31, 2010, when the pretrial
Chamber authorized the prosecutor to commence any investigation into the
situation, and ruled that potential cases would be admissible because the
government was not investigating or prosecuting the leaders bearing the greatest
responsibility for the violence.
c) The person concerned has already been tried or conduct which is the subject
of the complaint, and a trial by the Court is not permitted under article
20,paragraph 3;
d) The case is not of sufficient gravity to justify further action by the Court.
11 .Part 2 of The Statute

In order to determine unwillingness in a particular case, the court shall consider the
principles of due process recognized by international law.
There are three unwillingness mentioned in Article 17(2) 12
The first is that the proceedings were or are being undertaken or the national
decision was taken for the purpose of shielding the person concerned from criminal
responsibility for crimes within the jurisdiction of the court. The ICC will therefore
make a judgment on the intention of a state behind its trail procedure, or decision
making.
The second is that 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.
The third is that the proceedings were not or are not being conducted independently
or impartially in a manner which is inconsistent with intent to bring the person to
justice.
The criteria for inability are clearly provided in Article 17(3) in a more objective way.
Under Article 19(2) (b) of The Rome Statute, Libya challenged the admissibility
before the ICC of the case concerning Salif Al-Islam Gaddafi. In accordance with the
principle of complementarity set forth in Article 17 of the Rome Statute, Libya
submitted that this case is inadmissible on the ground that its national judicial
system is actively investigating Mr. Gaddafi for his alleged criminal responsibility for
multiple acts of murder and persecution, committed pursuant to or in furtherance of
state policy, amounting to crimes against humanity.
Libya contended that to deny the Libyan people this historic opportunity to
eradicate the long-standing culture of impunity would be manifestly inconsistent
with the object and purpose of the Rome Statute, which accords primacy to national
judicial systems.

OBLIGATION TO END IMPUNITY AND PROMOTE

INTERNATIONAL CRIMINAL JUSTICE:
COMPLEMENTARITY PRINCIPLE AND THE ROME STATUTE:
State parties to the Rome Statue are under an obligation to end impunity,
promote human rights, peace and promote international criminal justice
through prosecuting perpetrators of international crimes of genocide, crimes
against humanity and war crimes.13
12Of the Rome Statute.

The crimes of genocide, crime against humanity and war crimes have
shocked the consciousness of mankind and affected the interests of
international community as a whole. Therefore, the prohibition of these
crimes has become part of jus Cogens and every state has an obligatia
ergaomnes to punish them.
In the Preamble of the Statute, states parties declare that they wish to
establish a permanent court to put an end on impunity for perpetrators of
these crimes and thus contribute to the prevention of such crimes14, and to
ensure their effective prosecution by taking measures at the national level
and by enhancing international cooperation, and that the International
Criminal Court (permanent Court) shall be complementary to national
jurisdictions.
The basic idea for the complementarity is to maintain state sovereignty,
under which it is the duty of every state to exercise its criminal jurisdiction
over those responsible for international crimes, to enhance the national
jurisdiction over the core crimes prohibited in the statute, and to perfect a
national legal system so as to meet the needs of investigating and
prosecuting persons who committed the international crimes listed in the
statute.
However, the ad hoc tribunals have primacy over national jurisdictions on
prosecution of international crimes that is the ICTY (The International
Criminal Tribunal for the former Yugoslavia) and the ICTR (The International
Criminal Tribunal for Rwanda and the Special Court for Sierra Leone (SCSL)15,
as the establishment of the two tribunals is a measure taken by the Security
Council of the UN.16

13 . For example, Uganda has fulfilled the above, by creation of the International
Crimes Division in 2008 with the mission to fight impunity and promote human
rights and through the domestication of The Rome Statute to make further provision
in Ugandas law for the punishment of international crimes.
14 Paragraph5, preamble of the Rome Statute IA/conf. 193/9
15 See Security Council Resolution 1315 of 14 th August 2000 establishing the
Special Court for Sierra Leone.
16Article 9(2) of the Statute of the ICTY and Article 8 of the ICTR Statute.

The Rome Statute requires all the states concerned, including non-party
states, to follow the human rights standards and proceedings provided in the
Statute, including the presumption of innocence, the rights to have public
hearings, choose lawyers at the accuseds free will and obtain legal
assistance free of charge and the rights to be informed, examine the witness,
remain silent.
One of the most important roles of the principle of complementarity is to
encourage the state party to implement the provisions of the statute,
strengthening the national jurisdiction over those serious crimes listed in the
statute, so long as the legal system of a state can efficiently investigate and
prosecute the serious crimes prohibited in the statute and the sovereignty of
the state will remain unaffected.
The thrust of the principle of complementarity also demands states to punish
the crimes listed in the Rome Statute by adopting the same substantive law
of the statute. Paragraph 4 of the statutes preamble affirms that the most
serious crimes must not go unpunished and that their effective prosecution
must be ensured by taking measures at the national level.
From the point of view of naturalist theory of International law, a state also
has the obligation to act in accordance with the customary international law.
In this sense, paragraph 6 in the preamble of the statute recalls that it is
the dutyof every state to exercise its criminal jurisdiction over those
responsible for international crimes and such duty means the obligation for
every state to establish jurisdiction over the crimes listed in the Rome
Statute, disregarding whether this state is a contracting party to the Rome
Statute or not.
It is obvious that the International Criminal Court cannot prosecute all crimes
committed. It is entirely necessary to obtain effective prosecution through
the national level.
In order to ensure the implement of the Rome Statute, the principle of
complementarity is actually an approach of encouragement. If there is an
allegation that the crimes listed in the statute happen, the ICC shall let the
states which have jurisdiction over the crimes address the issue first.17

17 .by prosecuting and punishing those who are responsible for the crimes, by so
doing, the ICC put national judicial sovereignty the states to exercise their national
criminal jurisdiction

However if the states concerned fail to do so, the ICC has the right to
exercise its own jurisdiction over the crime in accordance with the principle
of complementarity, acting against the will of the states.
Therefore, the principle of complementarity only respects the judicial
sovereignty of the willing and able states. At the same time whenever the
ICC exercise its jurisdiction, it implies a declaration of unwillingness and
inability of the states with the jurisdiction over the crimes.