Selective morality in the pursuit of international criminal justice with particular reference to Article 13 of the Rome Statute
The tribunals at Nuremberg and Tokyo were significant in establishing a moral legacy by invoking the principle of individual criminal responsibility in international law. However, the said moral legacy was tainted given that the tribunals were created by the victorious allies to try their captive enemies. While the Nuremberg tribunal targeted the Axis Powers for atrocities committed in Europe during World War II (WW II), the Tokyo tribunal selectively prosecuted Japanese soldiers for similar atrocities committed in the Far East during WW II. Such targeted prosecutions resulted in allegations of selective morality in the pursuit of international criminal justice. From Nuremberg to Rome, the pursuit of international criminal justice have not complied with the rule of equality before the law. This argument is premised on the exercise of selectivity experienced at the Nuremberg, Tokyo, the Former Yugoslavia and Rwanda tribunals, including the Special Court for Sierra Leone (SCSL). Similarly, the continuous indictment and prosecution of African leaders before the International Criminal Court (ICC) merely support the allegations of selectivity. Such exercise of selectivity seems to be interpreted by many academics and professionals as bias compared to other developments that have occurred in different regions of the world. For instance, the ongoing unrest in Syria and portions of the Middle East ought to have qualified for referral by the UN Security Council as a threat to international peace and security, and set in motion the jurisdiction of the ICC in order to achieve the ultimate goal of the Court – eradicate impunity and replace it with accountability for serious crimes in international law. The aim of this study is to assess the allegation of selective prosecutions by the ICC and how such selectivity impact on the trigger mechanisms under Article 13 of the Rome Statute. The main objective is to analyze the nature and scope of Article 13 referrals with the view to contribute to the existing body of knowledge regarding Article 13 in particular and the ICC in general. By utilizing a phenomenological methodological approach, the thesis generates the contention that whereas Article 13 of the Rome Statute triggers the jurisdiction of the ICC, it catalyses the process through which hegemonic states and senior state officials continue to evade justice by selectively prosecuting their targeted opponents. The study recommends, among other things, the re-construction of Article 13 of the Rome Statute to provide for a more unified and comprehensive jurisprudence that addresses the allegation of selective prosecutions raised by African states. In this regard, the study proposes an amendment to the Rome Statute through the creation of an arm’s length independent body called the Referral Review Panel (RRP) with the core mandate to critically assess and determine the merits of cases referred to the ICC for prosecution. The study further recommends that the Malabo Protocol should be repealed such that the shield of immunity granted to sitting Heads of States is lifted in the interest of Justice and as well, the complementarity clause stated under Article 46H of the Protocol should have a nexus with the ICC such that the Court is allowed to prosecute the perpetrators of serious crimes in circumstances where the African Court of Justice and Human Rights prove reluctant to do so.
- Law