Search Results

You are looking at 1 - 5 of 5 items for

  • Author or Editor: Dapo Akande x
  • Search level: All x
Clear All
In: Contemporary Issues Facing the International Criminal Court
Author:

The International Court of Justice (icj) has held that Article vi of the Genocide Convention imposes an implicit obligation on contracting parties to cooperate with an “international penal tribunal” that has jurisdiction over persons charged with genocide. Although it was envisioned in the drafting of the Convention that acceptance of such jurisdiction would occur by treaty, the icc is to be regarded as a competent international penal tribunal under the Genocide Convention even in cases where the icc exercises jurisdiction on the basis of a Security Council referral. This creates an obligation on parties to cooperate with the icc where an accused person is charged with genocide. However, under the jurisprudence of the icj, this obligation of cooperation only arises where the contracting party in question has not only accepted the jurisdiction of the tribunal but also has a pre-existing obligation to cooperate. Applying this precedent would mean that in the Bashir case only those states that are parties to the icc Statute have an obligation of cooperation under the Genocide Convention. However, a teleological interpretation of the Convention would permit use of the Genocide Convention as a basis for creating an obligation of cooperation for nonparties since they must be deemed to have accepted the jurisdiction of the icc over the case, by virtue of a binding Security Council resolution conferring such jurisdiction.

Relying on the Genocide Convention as a basis for cooperation would open up alternative arguments allowing icc parties (and nonparties if the teleological interpretation were adopted) to bypass immunities otherwise provided for in international law.

In: Contemporary Issues Facing the International Criminal Court
In: The International Criminal Court: Contemporary Challenges and Reform Proposals
In: The International Criminal Court: Contemporary Challenges and Reform Proposals

Abstract

This article assesses the African Union’s (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The Council’s failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the Sudanese leader. Given the AU’s continued concerns, and the current impasse, fundamental questions have arisen about the Council’s authority to exercise, or not exercise, its deferral power. This culminated into a November 2009 African proposal for an amendment to the Rome Statute to empower the UN General Assembly to act should the UNSC fail to act on a deferral request after six months. Although ICC States Parties have so far shown limited public support for the AU’s proposed amendment to the deferral provision, this article examines its merits because a failure to engage the “Article 16 problem” could impact international accountability efforts in the Sudan, and further damage the ICC’s credibility in Africa. This unresolved issue also has wider significance given that the matters underlying the tension ‐ how ICC prosecutions may be reconciled with peacemaking initiatives and the role and power of the Council in ICC business ‐ will likely arise in future situations from around the world.

Open Access
In: African Journal of Legal Studies