AN ANALYSIS OF THE COMPLEMENTARITY OF AFRICAN STATES AND THE ICC

Abstract

States are encouraged to prosecute the four core crimes provided by the Rome Statute i.e. crimes against humanity, war crimes, genocide and crimes of aggression 1committed in their jurisdiction as having primary responsibility. For a state to be termed as ‘able to prosecute crimes’ without the interference of the International Criminal Court (ICC) it must show steps that it is applying to gain that capacity e.g. incorporating the Rome Statute into its legislation, giving domestic court judicial powers to prosecute these cases etc. However, most African states are being termed as unwilling and unable to investigate and prosecute these crimes causing scrutiny by the ICC. This has caused tension between the ICC and the African states to a point of threatening to withdraw from the ICC. After the 2007 post- election violence Kenya attempted to make steps to investigate the atrocities caused and other crimes in the future e.g. by creating hybrid courts.2 Some researchers argue that they did so to avoid interference by the ICC rather than genuinely being willing to make positive steps. Seeking to identify the challenges causing the tension between African states especially Kenya and the ICC that is weakening the principle of complementarity is important if the ICC is going to be benefit to Kenya and Africa as a whole rather than a ‘watch dog’. This study analyses the principle of complementarity in the Rome Statute3 and how the ICC interprets it from its actions. It also analyses the steps Africa has taken to improve the complementarity principle and the co-operation with the ICC or lack thereof. The study will utilize case studies used to identify this issue in Kenya and African and the issue of interpreting complementarity in the Rome statute. Finally, it shall draw recommendations to improve the relationship between Africa and the ICC.