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.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:554490 |
| Date | January 2012 |
| Creators | Fouladvand, Shahrzad |
| Publisher | University of Sussex |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://sro.sussex.ac.uk/id/eprint/38540/ |
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