How Far is Enough? The Cooperation Regime of the ICC and the States' Sovereignty Prerogative

Abstract

<p>This thesis aims to examine the effect of sovereignty on the activities of the International Criminal Court (ICC) in Africa and the legitimacy and effectiveness of such intervention. Depending upon how one perceives the concept of ‘sovereignty’, this thesis argues that no consensus evidence exists that the ICC affects the sovereignty of an African State in its activities. This is particularly the case for South Sudan. States Parties, by signing and ratifying the <i>Rome Statute</i>, willingly ceded their exclusive right to prosecute crimes of international concern to the ICC through the ‘complementarity’ principle, where the ICC can intervene in the territory of the State Parties where crime occurs if that State is unable or unwilling to prosecute the crime. The ICC can only intervene to prosecute crimes occurring in the territories of non-State Parties if the State where the crimes occurred lodged a declaration with the Registrar of the ICC and accepts the jurisdiction of the Court or through a United Nations Security Council (UNSC) resolution under the <i>United Nations Charter</i>, Chapter VII.</p> <p>Regardless of whether the State is a State Party, non-State Party, weak State or strong State, the ICC will not enter any State’s territory without the State’s consent. All the indictments of the perpetrators by the ICC can only proceed to trial after rigorous admissibility procedures by the Pre-trial Chamber of the Court and before the matter is referred for investigation. African cases are self-referrals, whereby the government of the country concerned had referred the rebel or opposition group of those countries to the ICC. Therefore, concerns expressed by Africans that the ICC is targeting African States is not sustainable.</p> <p>Nevertheless, the over-representation of Africa in the ICC criminal justice system has negatively impacted the perceived legitimacy and effectiveness of the Court in Africa. To enhance the legitimacy and effectiveness of the Court, this thesis recommends a decentralised, international criminal justice system of accountability through the ICC and the African Union (AU) with the support of the United Nations (UN) and the international community by establishing permanent regionally-based hybrid courts in Africa.</p> <p>The ICC should implement clear guidelines for selecting issues for prosecution, implement the New Zealand approach for the uniform application of handling cases of non-compliance of the referral by the UNSC, and address the underlying concern by the African leaders for the need to reform the UNSC to increase its inclusivity.</p>