State cooperation within the context of the Rome Statute of the International Criminal Court : a critical reflection

[摘要] ENGLISH ABSTRACT: This thesis is a reflection of the provisions of the Rome Statute in relation to the mostfundamental condition for the effective functioning of the Court – the cooperation ofstates. It broadly examines the challenges experienced by the Court with respect toapplication of Part IX such as whether non-State Parties to the Rome Statute can,notwithstanding their right not to be party, be compelled to cooperate with the Courtowing to the customary international law obligation for all States to repress, find andpunish persons alleged to have committed the crimes within the jurisdiction of theCourt (war crimes, crimes against humanity, and genocide). This is particularlychallenging where such persons are nationals of non-States Parties. The variousmeanings of international cooperation in criminal matters is discussed with referenceto and distinguished from the cooperation regime of the International CriminalTribunals for Rwanda and the former Yugoslavia.For States Parties to the Rome Statute, the thesis evaluates the measure of theirinability or unwillingness to genuinely prosecute persons alleged to have committedcrimes within the jurisdiction of the Court within the context of the principle ofcomplementarity. It seeks to address, where such inability or unwillingness has beendetermined by the Court, how effective the cooperation between the States Parties andthe Court could best serve the interests of justice. The thesis answers the question onwhat extent the principle of complementarity influences the cooperation of States withthe Court, whether or not these States are party to the Rome Statute. The concept ofpositive complementarity that establishes a measure of cooperation between the Courtand the national criminal jurisdictions is further explored in the context of the Court's capacity to strengthen local ownership of the enforcement of international criminaljustice.A nuanced discussion on the practice of the Court with respect to the right of personsbefore the Court is developed. The rights of an accused in different phases of Courtproceedings and the rights of victims and affected communities of crimes within theCourt's jurisdiction are considered at length and in the light of recently-establishedprinciples regulating the Court's treatment of these individuals. These persons are keyinterlocutors in the international criminal justice system and have shifted thetraditional focus of international law predominantly from states to individuals andbring about a different kind of relationship between States as a collective and theirtreatment of these individuals arising from obligations to the Rome Statute.Finally the thesis interrogates the enforcement mechanisms under the Rome Statute.Unlike States, the Court does not have an enforcement entity such as a Police Forcethat would arrest persons accused of committing crimes within its jurisdiction,conduct searches and seizures or compel witnesses to appear before the Court. Yet,the Court must critically assess its practice of enforcing sentences that it imposes onconvicted persons and in its contribution to restorative justice, the enforcement ofreparations orders in collaboration with other Rome Statute entities such as the TrustFund for Victims.

[发布机构] Stellenbosch University