Complementarity and cultural sensitivity: decision-making by the ICC prosecutor in relation to the situations in the Darfur region of the Sudan and the Democratic Republic of the Congo (DRC)

Fouladvand, Shahrzad (2012) Complementarity and cultural sensitivity: decision-making by the ICC prosecutor in relation to the situations in the Darfur region of the Sudan and the Democratic Republic of the Congo (DRC). Doctoral thesis (DPhil), University of Sussex.

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Abstract

The complementarity regime created by the Rome Statute of the International Criminal
Court (ICC) marked a radical departure for international criminal justice. It represented a
significant break with the Westphalian state system of national sovereignty and a step
towards a regime of global governance based on the rule of law. The ICC is rooted in a
Kantian notion of cosmopolitan justice where there is a need for a response to state
failures to eliminate gross human rights violations. However, it has also been seen as a
post-colonial court representing the hegemony of western justice and western authority
over local traditions, particularly in the Islamic world. The operation of the operation of
the complementarity regime does not reflect all types of juridical traditions and is
therefore viewed with suspicion by nations with different criminal justice ideologies and
policies.

This thesis examines the practical and moral legitimacy of the complementarity regime
of the ICC from two possible perspectives, both of which in their different ways support
the idea of universal jurisdiction. Kant’s moral philosophy represents the western
justification for the regime, whereas the tradition of Islamic Shari’a epitomises the
potential resistance from the developing world. Through an analysis of the exercise of
prosecutorial discretion under the complementarity regime in relation to the Ituri region
of the Democratic Republic of Congo (DRC) and the Darfur situation in Sudan, the thesis
examines both the logistics of the decision-making in these cases, as well as the moral
justifications for intervention. The fieldwork included a six month programme of
participant observation and interviewing in the Office of the ICC Prosecutor in The
Hague.

The ICC is an independent court with a global jurisdiction which grants the Prosecutor a
broad discretion to apply the complementarity regime to meet the expectations of the
entire international community, regardless of the status, national origin or state
citizenship of the accused. This thesis argues that a careful consideration of the moral
case for the exercise of authority under the complementarity regime is important and
depends upon an understanding of the inherent differences between the Rome Statute and
national justice systems. The research highlights the fact that moral obligations do not
end at national borders. It asserts that a credible complementarity mechanism requires the
effective prosecution of international crimes in a manner which is legitimate in terms of
local culture and traditions. Otherwise, as the research demonstrates, the Court will enjoy
little support, particularly as enforcement has so far focused only on Islamic or less
developed countries.

Item Type: Thesis (Doctoral)
Schools and Departments: School of Law, Politics and Sociology > Law
Subjects: D History General and Old World > DT History of Africa > DT0154.1 Sudan. Anglo-Egyptian Sudan
D History General and Old World > DT History of Africa > DT0470 West Africa. West Coast > DT0641 Zaire. Congo (Democratic Republic). Belgian Congo
K Law > KZ Law of Nations > KZ5510 International law of peace and peace enforcement
Depositing User: Library Cataloguing
Date Deposited: 21 Mar 2012 15:46
Last Modified: 25 Aug 2015 13:19
URI: http://sro.sussex.ac.uk/id/eprint/38540

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