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IMG/SUDAN FINAL 17Sep 2007.Pdf [Accessed on 10Th September2011] A University of Sussex DPhil thesis Available online via Sussex Research Online: http://sro.sussex.ac.uk/ This thesis is protected by copyright which belongs to the author. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Please visit Sussex Research Online for more information and further details 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) THE DEGREE OF DOCTOR OF PHILOSOPHY SHAHRZAD FOULADVAND SUSSEX LAW SCHOOL UNIVERSITY OF SUSSEX January 2012 DECLARATION I hereby declare that this thesis has not been submitted, either in the same or different form, to this or any other University for a degree and the work produced here is my own except stated otherwise. Sign: ........................................ Shahrzad Fouladvand Date: ii ACKNOWLEDGEMENTS I would like to thank Dr. Richard Vogler and Professor Craig Barker for their constructive guidance and recommendations. In particular, I am extremely grateful to Dr. Vogler, whose support and inspired suggestions have been invaluable throughout the completion of this thesis. I must express my gratitude to my brothers and my parents. This thesis could not have been written without my parents’ constant encouragement. Their generous financial support, their love and good wishes, smoothed the way for my studies in Iran and abroad. I will be always grateful to them from within my heart. This thesis is dedicated to them. I am also grateful to a number of organizations, such as Human Rights Watch, the Open Society Institute, REDRESS, the International Bar Association, the International Crisis Group and UNDP for their sincere help and for responding to my queries so promptly. Thanks are also due to the ICC officers and the Grotius Centre for International Legal Studies for their help and valuable hints. I wish to thank Rachel Cole, who helped me to improve my academic writing skills. I would also like to thank Matthew Cole for his patient proofreading which added a lot of value to my thesis. Special thanks should be given to my friends and colleagues at Sussex Law School and in The Hague, and also to my Iranian friends for their support during my PhD. I would like to offer my best wishes to all of them. iii ABBREVIATIONS AFDL Alliance des Forces Democratiques pour la Liberation AI Amnesty International APC Armee Populaire Congolaise ASF Avocats Sans Frontieres ASP Assembly of State Partiy AU African Union AUDP African Union High-Level Panel on Darfur CEDAW Convention on the Elimination of All Froms of Discrimination against Women CICC Coalition for the International Criminal Court CMJ Comite Mixed de la Justice CNDP Congres National pour la Defense du Peuple COM Comprehensive Peace Agreement CRC Convention on the Rights of the Child CSJ Cour Supreme de la Magistrature DRC Democratic Republic of Congo EU European Union FARDC Forces Armee de la Republique Democratique du Congo FIDH International Federation for Human Rights FIPI Front pour I’Integration et la Paix en Ituri HRW Human Rights Watch IAP International Association of Prosecutor IBAHRI International Bar Association Human Rights Institute ICC International Criminal Court ICCPR International Convention on Civil and Political Rights ICD Inter-Congolese Dialogue ICERD Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Convention of Economics, Social and Cultural Rights ICJ International Court of Justice ICTY International Tribunal for the Former Yugoslavia IHL International Humanitarian Law IICJ International Islamic Court of Justice ILAC International Legal Association Consortium ILC International Law Commission INC International National Constitution JEM Justice and Equality Movement LRA Lord’s Resistance Army MLC Mouvement pour la Liberation du Congo MONUC United Nations Organization Mission in the Democratic Republic of Congo MONUSCO United Nations Organization Stabilization Mission in the Democratic Republic of Congo NATO North Atlantic Treaty Organization NCOI National Commission of Inquiry NCP National Congress Party NGOs Non Governmental Organizations NIF National Islamic Front iv OIC Organization of the Islamic Conference OSISA Open Society Initiative for Southern Africa OTP Office of the Prosecutor PCP Public Congress Party PNC Police Nationale Congolaise PrepCom Preparatory Committee for the Establishment of an International Criminal Court RCC-NS Revolutionary Command Council for National Salvation RCD Rassemblement Congolais pour la Démocratie RCD-ML Rassemblement congolais pour la Démocratie – Mouvement de Liberation REJUSCO Restoring Justice to the East of the DRC RPE Rules of Procedure and Evidence RPF Rwandan Patriotic Front SCA Special Criminal Act SCCED Special Criminal Court on the Event of Darfur SLA Sudan Liberation Army SLM/A Sudan Liberation Movement/Army SPLA Sudan People’s Liberation Army UN United Nations UNCOI United Nation Commission of Inquiry on Darfur UNHRC United Nations Human Rights Council UNMIS United Nations Mission in Sudan UNSCR United Nations Security Council Resolution UPC Union des Patriotes Congolais WWI World War I FDLR Forces Decmocratiques de Liberation du Rwanda FNI/FRPI Fron des Nationalists et Integrationnistes – Front de Resistance Patriotique d’Ituri UPC/FPLC Union des Patriotes – the Forces Patriotiques pour la Liberation du Congo PTC Pre-Trial Chamber SIU Special Investigations Unit UPDF Uganda People’s Defence Force v 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. vi TABLE OF CONTENT Declaration ii Acknowledgments iii Abbreviation iv Abstract vi Chapter One: Introduction 1 Organization of the thesis 13 Chapter Two: The Normative basis of the complementarity regime of the ICC 18 Introduction 18 - General justification for the normative foundations of the complementarity regime of the ICC 21 Two moral approaches 27 1. Kantian approach 30 1.1 Categorical imperative; rational origin of morality 31 1.2 The origins of Complementarity 34 1.3 Revolutionary concept of sovereignty 36 1.4 Cosmopolitan ethics 39 2. The Classical Islamic approach; Islamic jurisprudence 49 2.1 Reluctant of Islamic states to participate in the ratification of the Rome Statute 52 2.2 Substantive law in the Islamic legal tradition 56 2.3 Procedural law in the Islamic legal tradition 59 2.4 Criminal proceedings under Shari’a law 61 2.5 Sovereignty 63 Conclusion 69 Chapter Three: ICC Prosecutorial policy on complementarity 71 Introduction
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