The Catalysing Effect of the Rome Statute in Africa: Positive Complementarity and Self-Referrals
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The Author(s) 2020
PATRICIA HOBBS*
THE CATALYSING EFFECT OF THE ROME STATUTE IN AFRICA: POSITIVE COMPLEMENTARITY AND SELFREFERRALS
ABSTRACT. The International Criminal Court’s (ICC) policy and practice of selfreferrals has attracted some degree of academic criticism. This has been due partly because the procedure itself was, according to some opinions, never quite envisaged in the original Rome Statute, and partly because the concept of a State self-referral appears to contradict the Rome Statute objective of the ICC as a Court of complementarity. Following Gabon’s self-referral in 2016, and in view of the recent termination of the ICC Prosecutor’s Preliminary Examinations in Gabon, this paper argues that African States’ self-referral practice continues to represent a step backwards for African local justice and accountability. The fact that in this particular situation the necessary threshold was not met is actually not relevant for the argument put forward in this paper, namely that this practice should now be put under scrutiny rather than accepting, at face value, a self-referral whenever an (African) State proposes it. The strengthening of local accountability and the transformation of the local justice landscape should be considered as the ICC long-term objectives, and more dialogue (as well as political pressure) should be contemplated in order to gently coerce States to take on investigations and prosecutions of international crimes.
I INTRODUCTION Despite the words of the Preamble (paragraph 6), the Rome Statute never imposed a legal obligation on States to investigate and prosecute international crimes perpetrated in the State’s territory, though it proclaimed the newly constituted Court as a Ôcourt of complemen*Dr. Patricia Hobbs,Senior Lecturer in LawBrunel Law School.Brunel University London. E-mail: [email protected]. This paper is part of a wider research project on the ICC cooperation regime carried out through a British Academy small grant. I am also extremely thankful to the anonymous reviewers for their invaluable scrutiny, comments, and suggestions to improve this article.
PATRICIA HOBBS
tarity to national criminal jurisdictions.’ The principle of complementarity instituted by the ICC reiterated the notion that there is no shield to the prosecution of international crimes and, if States are unable or unwilling to prosecute, then the ICC can take over the task. However, the ICC is not a Court of unlimited resources, both human and financial, and this reality can have an impact on the number of situations it can effectively investigate. Moreover, the State’s duty to cooperate, as set out in Part 9 of the Rome Statute, is the greatest stumbling block to its effectiveness, as prosecutions cannot take place if the State is unable or unwilling to arrest and surrender the relevant individuals to the ICC. On this basis, it is contended that the international criminal justice vision, and its corresponding maxim to end impunity for international crimes, should be mostly about enabling the
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