14 novembre 2017

OUVRAGE : J. Nyawo, Selective Enforcement and International Criminal Law: The International Criminal Court and Africa


The dynamics of enforcing international criminal justice through the International Criminal Court (ICC) has become a challenging exercise in Africa. At times the uneasy relationship between the ICC, the African Union and a few influential African states has given rise to concerns about the future of international criminal justice in general, and in Africa in particular. Still, the enthusiasts for international criminal justice as enforced by the ICC, interpret the challenges that the ICC is encountering in Africa as part of the growing pains of a new institution in the international system.

The distractors have already prepared the ICC’s obituary. One of the criticisms levelled against the ICC, and which is the motivation for, and central theme behind, this book is that it has morphed and ceased to be an independent legal institution instead becoming a political tool utilised by politically powerful states in the West against their political opponents in Africa. More specifically the Court is alleged to be selectively enforcing international criminal law by merely officially opening investigations and prosecutions in Africa. Although this book recognises that selective implementation of criminal justice is acceptable both at the domestic and international level, it analyses the legal and political factors behind the Court’s focus on international crimes committed in Africa when there are other situations to which the court should potentially turn its attention, such as in Syria, Afghanistan or the Occupied Palestinian Territories.

The book seeks to determine whether such a focus implies that Africa has the monopoly over international crimes or whether African victims or perpetrators are any different from those in the Middle East? In addition the book attempts to uncover the basis and the validity of the African Union and some African states’ criticisms of the ICC.


Chapter 1. Introduction 

1.1. Statutory Rules and the Court’s Engagement or Selection of Situations or Defendants 18
1.2. Selective Enforcement in International Criminal Law 
Chapter 2. The Establishment of the International Criminal Court, and Africa’s Role and Early Support
2.1. Attempting to Understand Africa’s Early Enthusiasm and Support for the Court
2.2. Role of the African Civil Society/NGOs in Promoting the Rome Statute and Cooperation with the Court in the Continent
2.3. The Court in the Global Governance System
2.4. The Seat of the Court
Chapter 3. The Office of the Prosecutor and the Politics of Selecting Targets for Prosecution
3.1. The US’s Paranoia over the Politicisation of the Court and its Possible Impact on the Prosecutorial Strategy
3.2. The EU, the Provision of Political Leadership and Financial Stability to the Court, and the Iraq Problem
3.3. Challenges and Prospects of the Office of the Prosecutor
3.4. Proprio Motu Powers in Action and the Prosecutor’s Fears Confirmed
3.5. The AU Strikes Back at the Prosecutor
Chapter 4. State Party Referrals, UN Security Council Referrals and the Selection of Situations
4.1. Outlining the Referral System in International Human Rights
4.2. Negotiating the Triggering Mechanisms into the Rome Statute
4.3. The UN Security Council Referral
4.4. State Party Referral
4.5. The Analysis: Links Between Referral Mechanisms and Selection of Situations by the Court – Darfur and Libya
Chapter 5. Assessing Selective Enforcement from an Admissibility Perspective
5.1. The Legal Basis for Admissibility in the Rome Statute
5.2. Three Stages of Admissibility Assessment under the Rome Statute
5.3. Statutory Factors that Regulate the Court’s Decision to Intervene in a Given Situation
5.4. Admissibility put into Practice by the Office of the Prosecutor and the Chambers
5.5. Crimes within the Jurisdiction of the Court
5.6. Admissibility in the Context of Self-Referral
5.7. The Admissibility of Situations Referred by the UN Security Council
5.8. The Admissibility of Situations Opened by the Prosecutor under Article 15 Powers
5.9. Gravity
Chapter 6. The AU and African States’ Shift from Cooperation to Non-Cooperation with the Court
6.1. An Uneasy Encounter Between the AU and the Court in Darfur
6.2. The Jilted Lover’s Response: Africa’s Deteriorating Relationship with the Court – the Aftermath of 4 March 2009
Chapter 7. African States’ Reaction to the AU’s Call for Non-Cooperation with the Court
7.1. Kenya Caught Between its Rome Statute Obligations and the AU’s Non-Cooperation Resolution
7.2. Malawi: Keeping up with its Rome Statute Obligations under Changing Leadership
7.3. Nigeria and Closing the Impunity Gap
7.4. South Africa: Caught between the Desire to Show its True Pan-Africanism Credentials and its Position as an Upholder of International Law Obligations
7.5. An Attempt to Amend Article 16: The Push for a Power Shift from the UN Security Council to the UN General Assembly
7.6. The AU’s Proposed Alternative Juridical Mechanisms to Curb the Court’s Intervention: The Proposal for a Hybrid Court for Darfur
7.7. Conferring International Criminal Jurisdiction onto the African Court on Human and Peoples’ Rights
Chapter 8. Africa and the International Criminal Court: The Lessons and Prospects
8.1. Lessons Learnt
8.2. Prospects

James NYAWO, Selective Enforcement and International Criminal Law: The International Criminal Court and Africa, Cambridge, Intersentia, 2017 (288 pp.)

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