Skip to main content

#ICC: The demise of State-Referral?

The International Criminal Court is a Court of last resort. The Court is a permanent institution with powers to exercise its jurisdiction over persons who bear the greatest responsibility for crimes of international concern. Conscious of the history of criminal acts against people, the world envisaged to repress such crimes through the creation of a permanent criminal tribunal. The atrocities committed are now monitored by the ICC by bringing the perpetrators who bear the most responsibility to justice. Even with the legal backing, the ICC has faced challenges on the question of cases it brings to book and the situations it omits. Equally, the ICC has had its detractors as well as proponents. 

The Court's jurisdiction can be triggered by three ways. The first is the state-referral or the self-referral, the second is through the UN Security Council referral and the last is through the prosecutors own volition also referred to as proprio motu. Of particular interest, we shall look at the 'self-referral' or 'state-referral' technique of triggering the Court's jurisdiction. Article 14 of the Rome Statute of the International Criminal Court allows a State Party to refer a situation, including crimes committed within the state's own jurisdiction, to the ICC Office of the Prosecutor (OTP) for investigation. There is no doubt, this mode of referral has had controversies among legal scholars. It is worth noting that of the eight situations at the ICC, only the first three were state referrals. It has been argued, rightly so, that self-referrals are inconsistent with the independence of the Court and its complementarity principle. Others have argued that state-referrals have been used by governments to fight oppositions in their countries. The initial referral to the ICC was the Uganda self-referral in 2003. The government of Uganda referred the situation in northern Uganda where atrocities were being committed by the Lord's Resistant Army (LRA). In March 2004, DRC also referred the situation in the Ituri region in Congo to the Court. And in December 2004, the OTP received another self-referral from Central African Republic. Self-referrals are well within the confines of the complementarity principle in Article 17.  Article 17 on admissibility of cases, points out that a case is admissible only when a state is unwilling and genuinely unable to prosecute a case. 

Are we seeing the demise of state-referral?

We continue from here in a subsequent posting.....

 

Comments

Popular posts from this blog

Speculating Magufuli’s absence at Uhuru Kenyatta’s Inauguration

29 November 2017 As I drove on the Thika Superhighway on the weekend before Uhuru Kenyatta’s inauguration on Tuesday, the road was decorated with flags of different countries. At the foot-bridge next to National Youth Service (NYS) Headquarters, the Tanzanian flag flew sublimely. Other flags including the Nairobi City Council flag decorated the Thika Superhighway that headed towards Kasarani, the venue of the inaguration. The Office of the Government Spokesman in Tanzania, had on 24 November issued a press statement saying that President John Magufuli would attend Mr. Kenyatta’s swearing in on 28 November. Days before Mr. Kenyatta’s inauguration, NASA leader Raila Odinga, a close friend to Mr. Magufuli flew to Zanzibar, where it is reported that the two met. Mr. Odinga’s trip to Zanzibar which came a few days after he jetted back to Nairobi from an overseas trip sparked debated and controversy. On the inauguration day, Tanzania’s State-House issued a press release saying that Vice Presi…

Comment: The Politics of Party Defection in Tanzania

Political party defection is a sign of unstable party democracy and/or jockeying for political positions. Defections happen from ruling party to the opposition and from the opposition to the ruling party. In African fledgling democracies, party defections are not about ideology or philosophic underpinnings. Party switching in many African states is largely driven by ethno-demographic and religious factors. These factors have also informed political party formation. Party switching is also a strategic political manoeuvring. Despite Tanzania boasting of national parties, political party strength is largely regional. We're now witnessing a surge in party defections from across the parties.
The defection of former PM Edward Lowassa from CCM to Chadema in 2015 was monumental, especially it coming just before a general election. The election season several high-profile defections. Defections from a dominant ruling party like CCM to the opposition is always huge. CCM's single party d…