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The impact of international criminal law and the ICC on national constitutional arrangements

Published online by Cambridge University Press:  06 July 2015

RUPERT ELDERKIN
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Abstract

International criminal law (ICL) developed in large part from international humanitarian law during the mid-to-late twentieth century. The International Criminal Court (ICC), a permanent institution to investigate and prosecute ICL cases finally was established in 2002. Although widely supported, certain states feared that the ICC would diminish national sovereignty. Yet, in formal legal terms, ICL and the ICC’s Rome Statute are just like other branches of public international law in terms of their relationship with national constitutional arrangements. ICL does not challenge states’ primary executive and judicial powers; it does not introduce any general rights for citizens or particularly onerous obligations for states that are already subject to the rule of law; and its intrusion on national sovereignty is only in evidence when a state’s leaders either are responsible for atrocities or are incapable of protecting their citizens from such atrocities. ICL thus is very different from international human rights law (IHRL), which directly impacts national constitutional arrangements. When ICL does come into play, however, arguably it may perform quasi-constitutional functions, in particular offering the only means under public international law to remove state officials from office when they are believed responsible for the most harmful abuses of power.

Keywords

comparative constitutional lawInternational Criminal Court (ICC)international criminal law (ICL)international human rights law (IHRL)state sovereignty
Type
Research Article
Information
Global Constitutionalism , Volume 4 , Issue 2 , July 2015 , pp. 227 - 253
Copyright
Copyright © Cambridge University Press 2015 

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References

1 Available at <http://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf>, accessed 11 May 2015.

2 The ICC has jurisdiction over the most serious ICL crimes committed by nationals of, or on the territory of, states Parties to the Rome Statute or other states accepting the ICC’s jurisdiction. It has jurisdiction also over cases referred by the UN Security Council. Currently, 123 states have ratified the Rome Statute – see The States Parties to the Rome Statute, available at <http://www.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx>, accessed 11 May 2015.

3 The ICC describes its primary mission as being, ‘to help put an end to impunity’ – see Understanding the International Criminal Court, available at <http://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf>, accessed 11 May 2015.

4 E.g., there is an extensive literature concerning the constitutional implications of European human rights law for states that are parties to the European Convention on Human Rights. For bibliographical references, see RCA White and C Ovey, Jacobs, White, & Ovey – The European Convention on Human Rights (5th edn, Oxford University Press, Oxford, 2010). For an overview going beyond the European experience, see Halmai, G, Perspectives on Global Constitutionalism: The Use of Foreign and International Law (Eleven International Publishing, The Hague, 2014)Google Scholar (section on ‘The Constitutionalization of International Law: International Human Rights before Domestic Courts’).

5 Woetzel, RK, ‘International Criminal Law and Human Rights: The Sharp Edge of the Sword’ (1968) 62 Proceedings of the American Society of International Law at Its Annual Meeting 117–23.CrossRefGoogle Scholar

6 For extensive bibliographical references to ICL literature, see, e.g., Bassiouni, MC (ed), Introduction to International Criminal Law (2nd edn, Transnational Publishers, Ardsley, NY, 2003)Google Scholar or Cassese, A, International Criminal Law (3rd edn, Oxford University Press, Oxford, 2008).Google Scholar The literature concerning ICL and questions of constitutional law comes largely from around the time when the Rome Statute was being drafted and subsequently, when it was open to states for signature and ratification: see, e.g., Duffy, H, ‘National Constitutional Compatibility and the International Criminal Court’ (2001) 11(5) Duke Journal of Comparative and International Law 5Google Scholar; Kreß, C and Lattanzi, F (eds), The Rome Statute and Domestic Legal Orders (Il Sirente, Ripa di Fagnano Alto, 2000)CrossRefGoogle Scholar; Lambert-Abdelgawad, E, ‘Cour pénale internationale et adaptations constitutionnelles comparées’ (2003) 55(3) Revue internationale de droit comparé 539CrossRefGoogle Scholar; Tavernier, P, ‘Comment surmonter les obstacles constitutionnels à la ratification du Statut de Rome de la Cour Pénale Internationale?’ (2002) 51 Revue trimestrielle des droits de l’homme 545Google Scholar; European Commission for Democracy Through Law (Venice Commission), Report on Constitutional Issues Raised by the Ratification of the Rome Statute of the International Criminal Court (2001), available at <http://www.venice.coe.int/webforms/documents/?pdf=CDL-INF%282001%29001-e>, accessed 11 May 2015, all presenting multi-country studies of constitutional compatibility. Most recently, the ICRC in 2010 published a retrospective account detailing the responses to constitutional concerns regarding the Rome Statute in 16 countries – see ICRC, Issues raised regarding the Rome Statue of the ICC by national Constitutional Courts, Supreme Courts and Councils of State (2010), available at <https://www.icrc.org/eng/resources/documents/legal-fact-sheet/issues-raised-regarding-rome-statute-factsheet-01-2010.htm>, accessed 11 May 2015. Others have focused on concerns relating to specific constitutions including, for example, the French (J Clerckx, ‘Le Statut de la Cour pénale internationale et le droit constitutionnel français’ (2000) 44 Revue trimestrielle des droits de l’homme 649), Russian (B Tuzmukhamedov, ‘The ICC and Russian Constitutional Problems’ (2005) 3(3) Journal of International Criminal Justice 621) and US (PD Marquart, ‘Law Without Borders: The Constitutionality of an International Criminal Court’ (1995) 33 Columbia Journal of Transnational Law 73; LA Casey, ‘The Case Against the International Criminal Court’ (2001) 25(3) Fordham International Law Journal 840) constitutions.

7 The US and French constitutions being two notable examples, incorporating the Bill of Rights and the Declaration of the Rights of Man and of the Citizen, respectively.

8 Compare, as one example, the fair trial rights provided by the US constitution’s sixth amendment with equivalent provisions contained in the International Covenant on Civil and Political Rights (ICCPR) at art 14(3). See Constitution of the United States of America as Amended, available at <http://www.gpo.gov/fdsys/pkg/CDOC-110hdoc50/pdf/CDOC-110hdoc50.pdf>, accessed 11 May 2015; International Covenant on Civil and Political Rights (United Nations, Treaty Series, vol 999, 171, 16 December 1966), available at <https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf>, accessed 11 May 2015.

9 As regards the relationship between criminal law and human rights law, it should not be particularly controversial to propose that both share the potential to shape the exercise of power, given that in sanctioning seriously harmful conduct, much of criminal law serves as a negative ‘stick’ to enforce positive rights such as the right to life or the right to freedom from discrimination on the basis of race. For a commentary on the relationship between criminal law and human rights law, see Tulkens, F, ‘The Paradoxical Relationship between Criminal Law and Human Rights’ (2011) 9(3) Journal of International Criminal Justice 577.CrossRefGoogle Scholar

10 See references at (n 6). Analyses have concerned such matters as extradition (prohibited under certain constitutions, e.g., Brazil, Costa Rica, Slovenia), immunity from prosecution (certain political figures – e.g., heads of state, parliamentarians – have been constitutionally immune from prosecution – see, e.g., Norway, Spain, Venezuela) and the imposition of life sentences (whole-life sentences were prohibited, e.g., by the constitutions of El Salvador, Honduras, Nicaragua, Venezuela). Such studies illustrate areas of potential incompatibility between the Rome Statute and various national constitutional arrangements, necessitating reconciliation either by means of amendment – thus, e.g., art 53-2 was inserted into the French Constitution by means of a constitutional amendment law passed in 1999: ‘La République peut reconnaître la juridiction de la Cour pénale internationale dans les conditions prévues par le traité signé le 18 juillet 1998’ (see Loi constitutionnelle n° 99-568 du 8 juillet 1999 constitutionnelle insérant, au titre VI de la Constitution, un article 53-2 et relative à la Cour pénale internationale, available at <http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/la-constitution/les-revisions-constitutionnelles/loi-constitutionnelle-n-99-568-du-8-juillet-1999.138003.html>, accessed 11 May 2015) – or through consideration and resolution by the appropriate state body (e.g., a Council of State) – see, e.g., Duffy (n 6) 28, referring to both the Norwegian and Spanish authorities’ consideration of the compatibility of the absolute immunity of their sovereigns with the Rome Statute. However, they do not answer the higher-order question of what it means for a sovereign, constitutionally-ordered state to be subject to ICL and the jurisdiction of the ICC.

11 Atrocities can often be described simultaneously as violations of ICL and of IHRL – e.g., it is banal but correct to say that the killed victims of a genocide have suffered a violation of their right to life.

12 Because the modern ICL regime (starting with the ad hoc international tribunals of the 1990s and now enshrined in the Rome Statute) has been in place for only a relatively short time, there is not a sufficient body of evidence to allow for rigorous empirical testing of this argument and such a survey is anyway beyond the ambitions of this article.

13 Dicey, AV, Introduction to the Study of the Law of the Constitution (9th edn, Macmillan, London, 1939) 23.Google Scholar

14 Indeed, not just ‘typically’. Arguably, such a rights component is a ‘constitutional essential’ (FI Michelman, ‘Constitutional Authorship’ in L Alexander (ed), Constitutionalism: Philosophical Foundations (Cambridge University Press, Cambridge, 1998) 65).

15 Young, EA, ‘The Constitution outside the Constitution’ (2007) 117(3) Yale Law Journal 408, 411.CrossRefGoogle Scholar

16 Fallon, RH Jr, ‘Constitutional Constraints’ (2009) 97(4) California Law Review 975, 985.Google Scholar

17 Cassese (n 6) 15.

18 E.g., the Lieber Code (1863); First Geneva Convention (1864); Hague Conventions (1899, 1907).

19 See Bassiouni (n 6), ‘[t]he writings of scholars for millennia have been positing rules for lawful and unlawful use of force’ (62) … ‘Aristotle, Cicero, St. Augustine and St. Thomas Aquinas set forth the philosophical premise of legitimacy of war’ (313) … Meanwhile, ‘[p]iracy has been recognized as an international crime under customary international law since the 1600’s’ (83) – sea-borne piracy historically was the definitive international crime, touching upon all trading states’ interests but beyond the traditional limits of territorial jurisdiction.

20 See, e.g., Rome Statute, art 8: ‘(1). The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. (2). For the purpose of this Statute, ‘‘war crimes’’ means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention.’

21 See, e.g., The Prosecutor v Duško Tadić aka ‘Dule’, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ICTY Case No IT-94-1 (2 October 1995), para 117, available at <http://www.icty.org/x/cases/tadic/acdec/en/51002.htm>, accessed 11 May 2015: ‘Attention must also be drawn to Additional Protocol II to the Geneva Conventions. Many provisions of this Protocol can now be regarded as declaratory of existing rules or as having crystallized emerging rules of customary law or else as having been strongly instrumental in their evolution as general principles.’

22 The full extent of the relationship between ICL and other branches of international law (i.e., IHL and IHRL) is more complex than as described here, however this simplified presentation suffices for present purposes.

23 Monist states view international law as part of the same continuum as the domestic legal order. Thus, ‘[i]nternational law has a primary place in this unitary legal system, such that domestic legal systems must always conform to the requirements of international law or find themselves in violation’ – T Ginsburg, S Chernykh and Z Elkins, ‘Commitment and Diffusion: How and Why National Constitutions Incorporate International Law’ (2008) University of Illinois Law Review 201, 204.

24 Dualist states view international law as distinct from domestic law and as something to which the state must consent in order for it to apply: ‘International legal obligations would require transportation into the domestic order to take effect. Absent such transportation, there is the distinct possibility of an action being legal in national law but illegal in international law; in which case, a dualist would presume that courts should apply the rules of national law’ – ibid.

25 E.g., Germany has a monist conception of international law. Art 25 of its Basic Law states that, ‘the general rules of public international law are an integral part of federal law. They shall take precedence over the laws and shall directly create rights and duties for the inhabitants of the federal territory’ (Basic Law for the Federal Republic of Germany, available at < http://www.bundestag.de/grundgesetz>, accessed 11 May 2015. English translation provided in MN Shaw, International Law (6th edn, Cambridge University Press, Cambridge, 2008) 171.

26 E.g., Israel has a dualist conception of international law and thus, of IHL and ICL. Accordingly, in A & B v State of Israel (2007), the Israeli Supreme Court sitting as the Court of Criminal Appeals affirmed that, ‘an explicit statutory provision enacted by the Knesset overrides the provisions of international law … However, according to the presumption of interpretive consistency, an Israeli act of legislation should be interpreted in a manner that is consistent, insofar as possible, with the norms of international law’ – see A & B vs State of Israel, CrimA 1757/07, CrimA 8228/07, CrimA 3261/08 (5 March 2007), available at <http://elyon1.court.gov.il/files_eng/06/590/066/n04/06066590.n04.pdf>, accessed 11 May 2015.

27 See M Politi and F Gioia (eds), The International Criminal Court and National Jurisdictions (Ashgate, Aldershot, 2008) 94 at fn 7. From the author’s own experience while working in support of Congolese armed forces prosecutors in 2014, the substantive articles of the Rome Statute are applied as directly applicable laws before military courts and tribunals presiding over war crimes and crimes against humanity cases.

28 The direct application of customary international law without specific legislative action is a monist-type characteristic of some dualist legal systems.

29 Or, even more starkly, in contrast to the various iterations of the treaties establishing the European Union and its accompanying supranational, quasi-constitutional structures (e.g., the European Court of Justice, the European Parliament).

30 At least, one not involved in long-running expeditionary wars, such as the United Kingdom – the ICC Prosecutor having launched (and subsequently reopened) a preliminary examination into certain actions of British troops during their operations in Iraq. See ‘Prosecutor of the International Criminal Court, Fatou Bensouda, re-opens the preliminary examination of the situation in Iraq’ (13 May 2014), available at <http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/pages/otp-statement-iraq-13-05-2014.aspx>, accessed 11 May 2015.

31 The Nuremberg and Tokyo Tribunals famously focused their efforts on individuals at the highest levels of the German and Japanese political and military structures (though many more lower-level perpetrators were prosecuted by other post-war courts and tribunals). The International Criminal Tribunal for the former Yugoslavia (ICTY) – one of the two ad hoc tribunals (along with the International Criminal Tribunal for Rwanda (ICTR)) that were established in the 1990s by the UN Security Council to apply ICL to individuals accused of the most serious crimes during the conflicts in those countries – maintained a similar focus. See About the ICTY: History, available at <http://www.icty.org/sid/95>, accessed 11 May 2015: ‘The Tribunal was created to concentrate on the most serious crimes and the people most responsible for them. Wherever possible, investigations have therefore focused on the leaders who could be regarded as most responsible for the crimes, because even heads of state are not above the law.’

32 In addition, ICL provisions apply to those in the most prominent positions in non-state organizations (e.g., leaders of rebel movements such FARC (Colombia) or the Tamil Tigers (Sri Lanka)). Where rebel forces control territory and civilian populations, a state’s constitutional protections are unlikely to have any purchase. The idea that ICL can provide a limited set of quasi-constitutional protections in the absence of any constitution appears worthy of further investigation.

33 For an extensive commentary on this principle, see Bassiouni, MC, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’ (2001) 42 Virginia Journal of International Law 81Google Scholar; see also Macedo, S (ed), Universal Jurisdiction. National Courts and the Prosecution of Serious Crimes under International Law (University of Pennsylvania Press, Philadelphia, PA, 2004) and Halmai (n 4).Google Scholar

34 See Macedo (n 33).

35 Although the attempts by Spanish investigative judge Baltazar Garzón to prosecute former Chilean President Augusto Pinochet frequently have been cast as the exercise of universal jurisdiction, note that Garzón’s case involved acts committed against Spanish citizens and therefore there was a nexus between the crimes and the prosecuting state.

36 Macedo (n 33) 4.

37 E.g., because crimes have been committed on the territory of a non-state Party and the UN Security Council is unwilling to refer the situation to the ICC Prosecutor.

38 Or indeed, in the interests of the wider international community. Bassiouni (n 6) 154 warned that, ‘universal jurisdiction must not be allowed to become a wildfire, uncontrolled in its application and destructive of international legal processes. If that were the case, it would produce conflicts of jurisdiction between states that have the potential to threaten world order, subject individuals to abuses of judicial processes, human rights violations, politically motivated harassment, and work denials of justice.’

39 Universal jurisdiction as it has been used to date may be said to symbolize the potential rather than the actual reach of ICL. Langer’s extensive study reveals that although over 1,000 universal jurisdiction complaints had been made worldwide (as of 2011), only 32 accused individuals were brought to trial. Langer describes the actual impact of universal jurisdiction as amounting mostly to, ‘a project of well-developed democracies’ (M Langer, ‘The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes’ (2011) 105(1) American Journal of International Law 1, 47).

40 Art 21 of the Rome Statute spells out that ‘the principles and rules of international law’ and ‘general principles of law derived by the Court from national laws’ are to be considered as sources of applicable law by the court.

41 See Rome Statute, Preamble, para 10 (‘Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions’); Art 1 (‘shall be complementary to national criminal jurisdictions’); Arts 17–19 (regarding the admissibility of cases before the ICC and setting out provisions such that the Court shall determine a case to be inadmissible if (per art 17(1)(a)) ‘[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’; or (per (b)) ‘[t]he case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute’).

42 Paper on some policy issues before the Office of the Prosecutor (September 2003) 4, available at <http://www.icc-cpi.int/NR/rdonlyres/1FA7C4C6-DE5F-42B7-8B25-60AA962ED8B6/143594/030905_Policy_Paper.pdf>, accessed 11 May 2015.

43 Sovereignty concerns were expressed by national representatives from, inter alia, Bahrain, China, Côte d’Ivoire, Guinea, India, Indonesia, Iraq, Kazakhstan, Republic of Korea, Libya, Malaysia, Mexico, Mozambique, Pakistan, Sudan, Swaziland, Syria, Trinidad and Tobago and Vietnam – although progressive voices are also in evidence, for example, from the Croatian (‘[E]stablishment of a permanent and universal court … meant abandoning the traditional concept of sovereignty of States’), Portuguese (‘[T]he concept of sovereignty has evolved significantly’) and Tanzanian (‘[T]he Court must ensure that State sovereignty became a concept of responsibility and international cooperation rather than an obstacle to the enjoyment of universal human rights’) representatives. (See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June–17 July 1998. Official Records. A/CONF.183/1.)

44 For example, the ICC OTP argued that cases against leading members of the former Gaddafi regime in Libya should not be prosecuted domestically because Libya lacks the capacity to handle such proceedings – the ICC Pre-Trial Chamber concurred with this assessment. See, e.g., ‘Summary of the Decision on the admissibility of the case against Mr Gaddafi’ (2013), available at <http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/icc0111/related%20cases/icc01110111/Documents/Summary-of-the-Decision-on-the-admissibility-of-the-case-against-Mr-Gaddafi.pdf>, accessed 11 May 2015.

45 Although it could have exercised its powers to prosecute individuals undertaking particular acts pursuant to those laws, provided that those acts amounted to crimes within the scope of the Rome Statute’s prohibitions.

46 Kirsch, P, ‘The Role of the International Criminal Court in Enforcing International Criminal Law’ (2007) 22(4) American University International Law Review 539, 543.Google Scholar

47 Notwithstanding that every state will establish a system of criminal justice, the purpose of that system is not primarily to restrain the abuse of power by the state and its agents, but to protect and maintain order amongst the general population.

48 Ssenyonjo further notes that the African Union has considered empowering the African Court of Justice and Human Rights to hold ICL trials: ‘If this does indeed occur, the African Court will be the first regional human rights body to have criminal jurisdiction to pronounce itself on what has hitherto fallen within the purview of international criminal tribunals’ (MA Baderin and M Ssenyonjo (eds), International Human Rights Law – Six Decades after the UDHR and Beyond (Ashgate, Aldershot, 2010) 472). As yet, this proposal has not been adopted, although the creation by the African Union and the Senegalese government of so-called ‘Extraordinary African Chambers’ of the Senegalese courts to try the former Chadian dictator Hissène Habré indicates a willingness to pursue ICL cases in Africa, even across national borders (see Human Rights Watch, ‘Q&A: The Case of Hissène Habré before the Extraordinary African Chambers in Senegal’ (27 April 2015), available at <http://www.hrw.org/news/2012/09/11/qa-case-hiss-ne-habr-extraordinary-african-chambers-senegal>, accessed 4 May 2015).

49 Which were also in breach of the previously applicable 1963 Yugoslav constitution (e.g., per art 47, ‘Life and the freedom of man shall be inviolable’) – see Constitution of the Socialist Federal Republic of Yugoslavia (1963), English translation available at <www.worldstatesmen.org/Yugoslavia_1963.doc>, accessed 11 May 2015.

50 Also commonly referred to as Bosnian Muslims.

51 ‘Situation of human rights in the territory of the former Yugoslavia. Final periodic report on the situation of human rights in the territory of the former Yugoslavia submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 42 of the Commission resolution 1995/89’ (22 August 1995) E/CN.4/1996/9, available at <http://www1.umn.edu/humanrts/commission/country52/9-yug.htm>, accessed 11 May 2015.

52 The Prosecutor v Radovan Karadžić and Ratko Mladić, Indictment, ICTY Case No IT-95-18-I (14 November 1995), available at <http://www.icty.org/x/cases/mladic/ind/en/kar-ii951116e.pdf>, accessed 11 May 2015.

53 Annex 4 of the General Framework Agreement (the formal title of the Dayton Accords) set out a new Constitution for Bosnia and Herzegovina – see <http://www.ohr.int/dpa/default.asp?content_id=372>, accessed 11 May 2015. Art IX(1) of that new Constitution reads, ‘No person who is serving a sentence imposed by the International Tribunal for the Former Yugoslavia, and no person who is under indictment by the Tribunal and who has failed to comply with an order to appear before the Tribunal, may stand as a candidate or hold any appointive, elective, or other public office in the territory of Bosnia and Herzegovina.’

54 In one case, however, an ICTY indictment was linked directly to the indictee’s political resignation. Ramush Haradinaj – formerly a commander in the Kosovo Liberation Army and later, prime minister of Kosovo – resigned from political office upon being indicted by the tribunal – see BBC News, ‘Profile: Ramush Haradinaj’ (9 March 2005), available at <http://news.bbc.co.uk/1/hi/world/europe/4329091.stm>, accessed 11 May 2015.

55 Loi No. 2000-513 du 1er Août 2000 pourtant Constitution de la Côte D’Ivoire, Art. 94, available at <http://www.presidence.ci/presentation/13/constitution-ivoirienne>, accessed 11 May 2015: ‘Le Conseil constitutionnel contrôle la régularité des opérations de référendum et en proclame les résultats. Le Conseil statue sur: – L’éligibilité des candidats aux élections présidentielle et législative; – Les contestations relatives à l'élection du Président de la République et des députés. Le Conseil constitutionnel proclame les résultats définitifs des élections présidentielles.’

56 Cook, N, Côte d’Ivoire Post-Gbagbo: Crisis Recovery (Congressional Research Service, Washington, DC, 2011) 13.Google Scholar

57 Côte d’Ivoire finally ratified the Rome Statute 15 February 2013.

58 See Human Rights Watch, ‘Côte d’Ivoire: ICC Judges OK Investigation’ (3 October 2011), available at <http://www.hrw.org/news/2011/10/03/c-te-d-ivoire-icc-judges-ok-investigation>, accessed 11 May 2015.

59 See generally ‘Situation in Côte d’Ivoire’, available at <http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx>, accessed 11 May 2015.

60 See République de Côte d’Ivoire, Déclaration de reconnaissance de la Compétence de la Cour Pénale Internationale (18 April 2003), available at <http://www.icc-cpi.int/NR/rdonlyres/FF9939C2-8E97-4463-934C-BC8F351BA013/279779/ICDE1.pdf>, accessed 11 May 2015. See also République de Côte d’Ivoire, Confirmation de la Déclaration de reconnaissance (14 December 2010), available at <http://www.icc-cpi.int/NR/rdonlyres/498E8FEB-7A72-4005-A209-C14BA374804F/0/ReconCPI.pdf>, accessed 11 May 2015.

61 Akin to the withdrawal/removal of various of the ICTY’s indictees from the political scene in their respective countries.

62 Both Kenya’s 1969 Constitution and its 2010 Constitution contain fundamental rights provisions, although those in the 2010 Constitution are more extensive. In addition, the 2010 Constitution establishes the Kenya National Human Rights and Equality Commission. (Constitution of Kenya (1969), available at <http://www.lcil.cam.ac.uk/sites/default/files/LCIL/documents/transitions/Kenya_2_1969_Constitution.pdf>, accessed 11 May 2015. Constitution of Kenya (2010), available at <https://www.kenyaembassy.com/pdfs/The%20Constitution%20of%20Kenya.pdf>, accessed 11 May 2015.)

63 See Report of the Commission of Inquiry into Post-Election Violence (15 October 2008) ix, available at <http://www.kenyalaw.org/Downloads/Reports/Commission_of_Inquiry_into_Post_Election_Violence.pdf>, accessed 11 May 2015.

64 See G Lynch and M Zgonec-Rožej, The ICC Intervention in Kenya (Chatham House, London, 2013) 4–5, available at <http://www.chathamhouse.org/sites/files/chathamhouse/public/Research/Africa/0213pp_icc_kenya.pdf>, accessed 11 May 2015.

65 See The American Non-Governmental Organizations Coalition for the International Criminal Court, ‘The ICC Prosecutor’s Application for Authorization to Open an Investigation in the Situation of Kenya’ (5 April 2010), available at <http://amicc.org/docs/Kenya_Application.pdf>, accessed 11 May 2015.

66 See Human Rights Watch, ‘Kenya: Q&A on the ICC Trial of Kenya’s Deputy President’ (2 September 2013), available at <http://www.hrw.org/news/2013/09/01/kenya-qa-icc-trial-kenya-s-deputy-president#13>, accessed 11 May 2015: ‘The ICC prosecutor has characterized the scale of interference with witnesses in the Kenya cases as “unprecedented,” referring to pressure on witnesses and their families.’ See also Global Post, ‘How Kenya took on the International Criminal Court’ (25 March 2014), available at <http://www.globalpost.com/dispatch/news/regions/africa/kenya/140325/how-kenya-beat-the-international-criminal-court>, accessed 11 May 2015, describing how the Kenyan government’s obstruction included not only alleged witness tampering, but, ‘as comprehensive a process of undermining as you can imagine’, involving obstruction, diplomacy and the 2013 ‘anti-ICC’ election strategy (former political rivals Kenyatta’s and Ruto’s joint platform being understood as in effect offering a national referendum on the ICC); and see Human Rights Watch, ‘ICC hopes of justice set back’ (5 December 2014), available at <http://www.hrw.org/news/2014/12/05/icc-hopes-justice-set-back>, accessed 11 May 2015.

67 See The Prosecutor v Uhuru Muigai Kenyatta, Decision on the withdrawal of charges against Mr. Kenyatta, Case No ICC-01/09-02/11 (13 March 2015), available at <http://www.icc-cpi.int/iccdocs/doc/doc1936247.pdf#search=withdrawal%20of%20charges%20kenyatta>, accessed 11 May 2015.

68 See Global Post (n 66).

69 Ibid.

70 See The Prosecutor v Ruto, Kosgey and Sang and The Prosecutor v Muthaura, Kenyatta and Ali, Application on Behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the ICC Statute, Case Nos ICC-01/09-01/11 and ICC-01/09-02/11 (31 March 2011), available at <http://www.icc-cpi.int/iccdocs/doc/doc1050005.pdf>, accessed 11 May 2015.

71 Information on all cases related to the Darfur situation is available at <http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx>, accessed 11 May 2015.

72 Twentieth Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593 (2005) (15 December 2014), para 31, available at <http://www.icc-cpi.int/iccdocs/otp/20th-UNSC-Darfur-report-ENG.PDF>, accessed 11 May 2015.

73 See, e.g., BBC News, ‘Sudan’s Omar al-Bashir in Malawi: ICC wants answers’ (20 October 2011), available at <http://www.bbc.com/news/world-africa-15384163>, accessed 11 May 2015 (re: travel to Chad, Kenya and Malawi) and ICC Now, ‘ICC Suspect Al-Bashir Travels to Djibouti: Related News and Opinions’ (9 May 2011), available at <http://www.iccnow.org/?mod=newsdetail&news=4505>, accessed 11 May 2015 (re: travel to Djibouti).

74 Rome Statute arts 59(1) and 89(1) require a state Party, at the ICC’s request, to take steps to arrest a wanted person. (Rome Statute Pt 9 governs international cooperation, including a general obligation (art 86) for member states to ‘cooperate fully with the Court in its investigation and prosecution of crimes’.)

75 Rome Statute, art 87(7).

76 For non-member states, even though failure to arrest an ICC wanted person may amount to non-compliance with a UNSC resolution, the prospect of further action being taken is even more remote – see, e.g., UNSC Resolution 1593, requiring the Government of Sudan to cooperate fully with the ICC (United Nations Security Council Resolution 1593 (31 March 2005) S/RES/1593, available at <http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=42bc16434>, accessed 11 May 2015).

77 Albeit, only after serious violations already have occurred.

78 In addition to Gbagbo, Kenyatta and al-Bashir, the ICC also investigated and issued an arrest warrant for Muammar Gaddafi of Libya before his death.

79 See (n 48). See also (n 35) commenting on the Spanish efforts to prosecute former Chilean President Pinochet.