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abubakar kagu

University of Sussex, School of Law, Politics and Sociology, Graduate Student

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Born in Machina, Yobe State Nigeria. Schooled in Maiduguri, Kano and Lagos Nigeria for LLB, BL and Masters respectively. Obtained Ph.D in Criminal Justice from University of Sussex, United Kingdom.A Solicitor and Advocate of the Supreme Court of Nigeria, Member of the Society for Legal Scholars, UK, an Associate Fellow of the Higher Education Academy, UK, Fellow of the Royal Society of Arts. Worked as a Chief Magistrate with Yobe State Judiciary. Currently a Senior Lecturer in Law, Yobe State University and Director of the Centre for Research and Capacity Development on Humanitarian Studies, YSU.

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Papers by abubakar kagu

A Shifting and Convoluted Paradigm in the Regime of Crime Control, Due Process and Penal Justice

Journal of Law, Policy and Globalization, 2019

The well-known criminal justice constituencies of crime control, due process and penal sentence a... more The well-known criminal justice constituencies of crime control, due process and penal sentence are facing far reaching transformations resulting in some paradoxical outcomes that include an upsurge in populist legislations and the emergence of non-state actors in justice administration. Although these may be reflections of criminal justice's attempt to enhance effectiveness, the outcome has been severely convoluted that the question of rights and even the foundation of theory of social contract are waning into the shadows of bureaucratic policies and practices that seemed to threaten the fabric of justice administration. This paper is an attempt to show how criminal justice policies and strategies are gravitating from their orthodox constituency to a territory that is mixed in populism, punitivism as well as the compounded regime of coalitions of public and private actors defined mostly by contentious new practices of crime control, procedural changes and an economic way of thinking, leading to unconventional and often controversial practices.

The Need for a Clear Legal and Contextual Framework to Distinguish Between the Crime of Genocide and the Crimes Against Humanity in Modern International Criminal Law

IOSR Journal of Humanities and Social Science, 2017

Since the Nuremberg trials of the 1940s, there has been an expansion of the list of crimes recogn... more Since the Nuremberg trials of the 1940s, there has been an expansion of the list of crimes recognized under international law. 1 While crimes such as genocide and the crime against humanity were provided for under international Charters, most of their contextualisation came through various court interpretation of international customary law. 2 What became obvious and somewhat complex to most scholars and commentators is the overlap between crimes against humanity and those considered as genocide. Espousing on the nature of this overlap, Fenrick states, "just as genocide has become the offense which represents what happened in Germany during 1944, so the crime against humanity and persecution has come to typify what happened in the territory of the former Yugoslavia.'' 3 This paper intends to give a simplified overview of the existing contention both of definition and application and to also argue the importance of either a clear demarcation or a framework for harmonisation of the two crimes.

Criminal Justice’s Ailing Role

Advances in Social Sciences Research Journal, 2017

The general philosophy of social contrcat is premised on the notion that the state assumes the ro... more The general philosophy of social contrcat is premised on the notion that the state assumes the role of maintaining social relation through diverse political ideas and strategies. Within the context of this historical arrangement, the institution of criminal justice has been foremost in shaping the relationship between members of the community by defining rights and sanctions. These socio-legal trajectories that developed through theories and policies have continued to define the various strategies of crime control as well as the jurisprudence of punishment. It has also been the key measure for the legitimacy of crime control and other dispute resolution technics (Davies et al. 2009). Being a significant component in the formation of political systems, the institution of criminal justice has also developed to encapsulate the values of democracy, constitionalism and human rights. It is from these ideas that criminal justice institutions mainly the police, the prosecutors, the courts and prisons derived their legitimacy, that are today seen by many as the ideal mechanism for maintaining social order. These agencies have, over time, gained prominence within the framework of a larger political order, engaging themselves as some "product of incremental enlightenment, benevolence, and a consensual society" (Burke 2012: 194). Despite these lofty assumptions about the role of criminal justice in the society, this paper argues that the policies and practices in criminal justice are far from benign. By bringing to discourse the contemporary realities of penal justice, this paper argues that many of the traditional values of criminal justice have been tremendously altered; conventional narratives are replaced by a new kind of penology. This includes the way in which the role and rights of various parties and participants in the system have been reconfigured as well as the economic way of thinking that is steadily disrupting the balance and objectives of the entire institution of criminal justice.

Victim Participation in Plea Bargaining: A Challenge to Nigeria’s New Criminal Procedure Laws

International Journal of Innovative Research and Development, 2018

One of the most phenomenal developments in Nigeria's criminal justice system was the recent enact... more One of the most phenomenal developments in Nigeria's criminal justice system was the recent enactment of the Administration of Criminal Justice Act (ACJA), 2015. 1 This law, which came into effect in 2015contains far reaching innovations. These new innovative provisions include the concept of negotiating with an offender, which in criminal justice is referred to as plea bargaining. Although plea bargaining is new to the Nigerian criminal justice system, it is a concept concept well entrenched in other jurisdictions around the world. As a controversial component of charges and sentencing procedure, plea bargaining, has for ages continued to generate plethora of debate among scholars. Most often, the argument is on whether it adds utility to criminal justice administration or is simply the commodification of justice. What is undoubtedly true of plea bargaining is its enormous consequence on the rights and roles of parties as well as the effect it has on the general procedure in criminal justice. This paper intends to look at the concept of plea bargaining from a wider perspective as it affects the legitimate interests of the victim of crime. The argument reviews situations in which this idea of negotiating with a criminal offender leaves the victim unattended and isolated despite his or her trauma as the one at the receiving end of a criminal act. His or her interest is subsumed even more that in conventional trials as disposal of cases move from the conventional courtroom adversariality to some form of bureaucratic arrangement.

A Shifting and Convoluted Paradigm in the Regime of Crime Control, Due Process and Penal Justice

Journal of Law, Policy and Globalization, 2019

The well-known criminal justice constituencies of crime control, due process and penal sentence a... more The well-known criminal justice constituencies of crime control, due process and penal sentence are facing far reaching transformations resulting in some paradoxical outcomes that include an upsurge in populist legislations and the emergence of non-state actors in justice administration. Although these may be reflections of criminal justice’s attempt to enhance effectiveness, the outcome has been severely convoluted that the question of rights and even the foundation of theory of social contract are waning into the shadows of bureaucratic policies and practices that seemed to threaten the fabric of justice administration. This paper is an attempt to show how criminal justice policies and strategies are gravitating from their orthodox constituency to a territory that is mixed in populism, punitivism as well as the compounded regime of coalitions of public and private actors defined mostly by contentious new practices of crime control, procedural changes and an economic way of thinkin...

‘New humanitarianism’, a disguised code for militarised interventionism

The question of protecting civilians and vulnerable groups from the aggression, violation and abu... more The question of protecting civilians and vulnerable groups from the aggression, violation and abuse of war is a subject that has continuously resonated in the field of legal scholarship. Over the last three decades, there has been renewed approach through the idea of humanitarian intervention to protect non militant members of the society from the dangers of armed conflict. From the old idea of providing aid to vulnerable groups to that which propose the validity of Responsibility to Protect (R2P), the world has seen a shift from the orthodoxies that define most intervention of the past. The growing concept of ‘new humanitarianism’ of recent time is one that combines diplomatic and militarised interference. This growing neo liberal approach to humanitarian intervention has tremendously redefined how powerful nations have become embroiled in in the conflicts of smaller nations, often under the guise of assisting and protecting civilians and vulnerable groups caught in conflicts. In t...

Globalisation of plea bargaining and its emergence in Nigeria: a critical analysis of practice, problems, and priorities in criminal justice reform

Almost a decade since the first case of plea bargaining received publicity in Nigeria, there is s... more Almost a decade since the first case of plea bargaining received publicity in Nigeria, there is still uncertainty about the nature and impact of this system on criminal justice administration. There is also a lack of clear understanding of how the process is conducted and fulfilled, as most of the activities are done behind the closed doors of the prosecutor’s office. What is even more significant is the degree of apprehension about the legality of the system, and the allegation that the process neither serves the purpose which it claims to address nor promotes the justice system’s main objectives of retribution and deterrence. These controversies have resulted in enormous criticism and arguments on whether the concept of plea bargaining is a suitable and sincere reform or whether it is a transplant that encourages compromise the kind of compromise that breeds corruption in the legal system. This study explores the development of plea bargaining in Nigeria as well as the polemics th...

How the process of plea bargaining is affecting the traditional role of prosecutors and judges in criminal justice

Over the years, criminal justice systems across the world have seen an unprecedented rise in the ... more Over the years, criminal justice systems across the world have seen an unprecedented rise in the use of plea bargaining to negotiate with criminal offenders. This phenomenon, which is by far a shift from the traditional form of trial, has raised enormous concerns among practitioners and scholars. While it is true that plea bargaining provides the criminal justice system with an alternatives way of dealing with what could ordinary have been a long and costly trial in an open court, it is also evident that the lack of adversariality in the court system has affected the traditional role of the different parties that have legitimate interests and obligations in criminal justice. These include both court room actors as well as the public. While discussion on how all of these parties are affected is relevant to any discourse on plea bargaining, the limit of this paper is to explore the dynamics that explain the changing role of prosecutors and judges.

Cloaking Neo-Imperialism in the Shadows of Human Rights and Liberal Peacebuilding

Journal of Law, Policy and Globalization

The concept of intervention to curtail humanitarian crisis in conflict zones has generated a grea... more The concept of intervention to curtail humanitarian crisis in conflict zones has generated a great deal of polemics on the matters of state sovereignty, human rights, democracy and even the legitimacy of liberal peacebuilding. These discussions often include the justification or otherwise of both political and militarised interventions. While interventionism has become the most common approach by world powers, the concept of liberal peace building with its cloaked connotation of fostering and sustaining tranquillity and curtailing humanitarian crisis is seen by many as lacking in the not only the protection of people but also in ensuring sustainable peace. The view of some scholars is that, intervention in the name of humanitarianism raises so many questions as world powers continue resorting to militarised approaches that do not translate to the welfare of those they claim to protect. Instead, the outcome has been largely a convoluted and surging circle of crisis across many corners of the world.

Polemics on the Utility of Domestic Courts to Prosecute International Crimes

International Journal of Innovative Research and Development

Introduction Although the idea of having a court that will try international crimes has been disc... more Introduction Although the idea of having a court that will try international crimes has been discussed for some time, it was in 1947 that the U.N. General Assembly requested that the International Law Commission (ILC) to begin to codify the principles of international law that emerged from the Nuremberg Tribunal (Ellis, 2002). This process continued through 1950s, and in 1994, the ILC produced a comprehensive draft that was later to become the Statute to guide the role and jurisdiction of the International Criminal Court (ICC) (Lee, 2001). The draft was adopted as the Rome Statute in 1998 which established the ICC saddled with the role of investigating and prosecuting individuals accused of committing gross violations of international humanitarian law that include genocide, crimes against humanity, war crimes and the crime of aggression (Holmes, 1999; Ellis, 2002). For the purpose of the statute, Genocide is any act committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. Crime against humanity on the other hand is that widespread or systematic attack directed against any civilian population. The statute also defines war crimes is anything that amounts to a grave breach of the Geneva Conventions of August 12, 949, which includes willful killing or causing of great suffering, unlawful deportation or confinement, taking hostage, torture, inhuman treatment that involves extensive and unjustified destruction and appropriation of property, as well as hostility on prisoners of war or depriving them the rights of fair trial (Charney, 2001; Ellis, 2002; Sedman, 2010).The establishment of the ICC brought in a new regime of criminal adjudication onto the world stage where an international court is now given a jurisdiction to investigate and prosecute crimes committed in different parts of the world. This development in international legal regime generated polemics among scholars and commentators on whether the crimes mentioned in the Rome Statute should be tried by domestic courts or that such crimes be left to international jurisdiction (Doherty and Timothy, 1999; Sadat and Carden, 2000). Proponents of international prosecution are of the opinion that lack the capacity and the will to rigorously prosecute grave international crimes. As proponents argue for a strong international court regime, others are of the opinion that the most effective means of dealing with these crimes of international concern is to have robust domestic legal systems across the countries of the world (Charney, 2001). This way, the domain of the 'complementarity' principle features as a genuine support for national courts and further entrenches the principle of sovereignty. Likewise, resort to international courts will become less and rare to be evoked only when it becomes extremely necessary with clear evidence that a crime will go unpunished do to the unwillingness or inability of domestic courts to try such cases. As Jann pointed out, the standard of measuring 'unwillingness' is to determine and assess the State's subjective motive of intent and purpose behind the proceedings (Kleffner, 2003) In

Polemics on the Utility of Domestic Courts to Prosecute International Crimes

International Journal of Innovative Research and Development

Introduction Although the idea of having a court that will try international crimes has been disc... more Introduction Although the idea of having a court that will try international crimes has been discussed for some time, it was in 1947 that the U.N. General Assembly requested that the International Law Commission (ILC) to begin to codify the principles of international law that emerged from the Nuremberg Tribunal (Ellis, 2002). This process continued through 1950s, and in 1994, the ILC produced a comprehensive draft that was later to become the Statute to guide the role and jurisdiction of the International Criminal Court (ICC) (Lee, 2001). The draft was adopted as the Rome Statute in 1998 which established the ICC saddled with the role of investigating and prosecuting individuals accused of committing gross violations of international humanitarian law that include genocide, crimes against humanity, war crimes and the crime of aggression (Holmes, 1999; Ellis, 2002). For the purpose of the statute, Genocide is any act committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. Crime against humanity on the other hand is that widespread or systematic attack directed against any civilian population. The statute also defines war crimes is anything that amounts to a grave breach of the Geneva Conventions of August 12, 949, which includes willful killing or causing of great suffering, unlawful deportation or confinement, taking hostage, torture, inhuman treatment that involves extensive and unjustified destruction and appropriation of property, as well as hostility on prisoners of war or depriving them the rights of fair trial (Charney, 2001; Ellis, 2002; Sedman, 2010).The establishment of the ICC brought in a new regime of criminal adjudication onto the world stage where an international court is now given a jurisdiction to investigate and prosecute crimes committed in different parts of the world. This development in international legal regime generated polemics among scholars and commentators on whether the crimes mentioned in the Rome Statute should be tried by domestic courts or that such crimes be left to international jurisdiction (Doherty and Timothy, 1999; Sadat and Carden, 2000). Proponents of international prosecution are of the opinion that lack the capacity and the will to rigorously prosecute grave international crimes. As proponents argue for a strong international court regime, others are of the opinion that the most effective means of dealing with these crimes of international concern is to have robust domestic legal systems across the countries of the world (Charney, 2001). This way, the domain of the 'complementarity' principle features as a genuine support for national courts and further entrenches the principle of sovereignty. Likewise, resort to international courts will become less and rare to be evoked only when it becomes extremely necessary with clear evidence that a crime will go unpunished do to the unwillingness or inability of domestic courts to try such cases. As Jann pointed out, the standard of measuring 'unwillingness' is to determine and assess the State's subjective motive of intent and purpose behind the proceedings (Kleffner, 2003) In

A Shifting and Convoluted Paradigm in the Regime of Crime Control, Due Process and Penal Justice

Journal of Law, Policy and Globalization, 2019

The well-known criminal justice constituencies of crime control, due process and penal sentence a... more The well-known criminal justice constituencies of crime control, due process and penal sentence are facing far reaching transformations resulting in some paradoxical outcomes that include an upsurge in populist legislations and the emergence of non-state actors in justice administration. Although these may be reflections of criminal justice's attempt to enhance effectiveness, the outcome has been severely convoluted that the question of rights and even the foundation of theory of social contract are waning into the shadows of bureaucratic policies and practices that seemed to threaten the fabric of justice administration. This paper is an attempt to show how criminal justice policies and strategies are gravitating from their orthodox constituency to a territory that is mixed in populism, punitivism as well as the compounded regime of coalitions of public and private actors defined mostly by contentious new practices of crime control, procedural changes and an economic way of thinking, leading to unconventional and often controversial practices.

The Need for a Clear Legal and Contextual Framework to Distinguish Between the Crime of Genocide and the Crimes Against Humanity in Modern International Criminal Law

IOSR Journal of Humanities and Social Science, 2017

Since the Nuremberg trials of the 1940s, there has been an expansion of the list of crimes recogn... more Since the Nuremberg trials of the 1940s, there has been an expansion of the list of crimes recognized under international law. 1 While crimes such as genocide and the crime against humanity were provided for under international Charters, most of their contextualisation came through various court interpretation of international customary law. 2 What became obvious and somewhat complex to most scholars and commentators is the overlap between crimes against humanity and those considered as genocide. Espousing on the nature of this overlap, Fenrick states, "just as genocide has become the offense which represents what happened in Germany during 1944, so the crime against humanity and persecution has come to typify what happened in the territory of the former Yugoslavia.'' 3 This paper intends to give a simplified overview of the existing contention both of definition and application and to also argue the importance of either a clear demarcation or a framework for harmonisation of the two crimes.

Criminal Justice’s Ailing Role

Advances in Social Sciences Research Journal, 2017

The general philosophy of social contrcat is premised on the notion that the state assumes the ro... more The general philosophy of social contrcat is premised on the notion that the state assumes the role of maintaining social relation through diverse political ideas and strategies. Within the context of this historical arrangement, the institution of criminal justice has been foremost in shaping the relationship between members of the community by defining rights and sanctions. These socio-legal trajectories that developed through theories and policies have continued to define the various strategies of crime control as well as the jurisprudence of punishment. It has also been the key measure for the legitimacy of crime control and other dispute resolution technics (Davies et al. 2009). Being a significant component in the formation of political systems, the institution of criminal justice has also developed to encapsulate the values of democracy, constitionalism and human rights. It is from these ideas that criminal justice institutions mainly the police, the prosecutors, the courts and prisons derived their legitimacy, that are today seen by many as the ideal mechanism for maintaining social order. These agencies have, over time, gained prominence within the framework of a larger political order, engaging themselves as some "product of incremental enlightenment, benevolence, and a consensual society" (Burke 2012: 194). Despite these lofty assumptions about the role of criminal justice in the society, this paper argues that the policies and practices in criminal justice are far from benign. By bringing to discourse the contemporary realities of penal justice, this paper argues that many of the traditional values of criminal justice have been tremendously altered; conventional narratives are replaced by a new kind of penology. This includes the way in which the role and rights of various parties and participants in the system have been reconfigured as well as the economic way of thinking that is steadily disrupting the balance and objectives of the entire institution of criminal justice.

Victim Participation in Plea Bargaining: A Challenge to Nigeria’s New Criminal Procedure Laws

International Journal of Innovative Research and Development, 2018

One of the most phenomenal developments in Nigeria's criminal justice system was the recent enact... more One of the most phenomenal developments in Nigeria's criminal justice system was the recent enactment of the Administration of Criminal Justice Act (ACJA), 2015. 1 This law, which came into effect in 2015contains far reaching innovations. These new innovative provisions include the concept of negotiating with an offender, which in criminal justice is referred to as plea bargaining. Although plea bargaining is new to the Nigerian criminal justice system, it is a concept concept well entrenched in other jurisdictions around the world. As a controversial component of charges and sentencing procedure, plea bargaining, has for ages continued to generate plethora of debate among scholars. Most often, the argument is on whether it adds utility to criminal justice administration or is simply the commodification of justice. What is undoubtedly true of plea bargaining is its enormous consequence on the rights and roles of parties as well as the effect it has on the general procedure in criminal justice. This paper intends to look at the concept of plea bargaining from a wider perspective as it affects the legitimate interests of the victim of crime. The argument reviews situations in which this idea of negotiating with a criminal offender leaves the victim unattended and isolated despite his or her trauma as the one at the receiving end of a criminal act. His or her interest is subsumed even more that in conventional trials as disposal of cases move from the conventional courtroom adversariality to some form of bureaucratic arrangement.

A Shifting and Convoluted Paradigm in the Regime of Crime Control, Due Process and Penal Justice

Journal of Law, Policy and Globalization, 2019

The well-known criminal justice constituencies of crime control, due process and penal sentence a... more The well-known criminal justice constituencies of crime control, due process and penal sentence are facing far reaching transformations resulting in some paradoxical outcomes that include an upsurge in populist legislations and the emergence of non-state actors in justice administration. Although these may be reflections of criminal justice’s attempt to enhance effectiveness, the outcome has been severely convoluted that the question of rights and even the foundation of theory of social contract are waning into the shadows of bureaucratic policies and practices that seemed to threaten the fabric of justice administration. This paper is an attempt to show how criminal justice policies and strategies are gravitating from their orthodox constituency to a territory that is mixed in populism, punitivism as well as the compounded regime of coalitions of public and private actors defined mostly by contentious new practices of crime control, procedural changes and an economic way of thinkin...

‘New humanitarianism’, a disguised code for militarised interventionism

The question of protecting civilians and vulnerable groups from the aggression, violation and abu... more The question of protecting civilians and vulnerable groups from the aggression, violation and abuse of war is a subject that has continuously resonated in the field of legal scholarship. Over the last three decades, there has been renewed approach through the idea of humanitarian intervention to protect non militant members of the society from the dangers of armed conflict. From the old idea of providing aid to vulnerable groups to that which propose the validity of Responsibility to Protect (R2P), the world has seen a shift from the orthodoxies that define most intervention of the past. The growing concept of ‘new humanitarianism’ of recent time is one that combines diplomatic and militarised interference. This growing neo liberal approach to humanitarian intervention has tremendously redefined how powerful nations have become embroiled in in the conflicts of smaller nations, often under the guise of assisting and protecting civilians and vulnerable groups caught in conflicts. In t...

Globalisation of plea bargaining and its emergence in Nigeria: a critical analysis of practice, problems, and priorities in criminal justice reform

Almost a decade since the first case of plea bargaining received publicity in Nigeria, there is s... more Almost a decade since the first case of plea bargaining received publicity in Nigeria, there is still uncertainty about the nature and impact of this system on criminal justice administration. There is also a lack of clear understanding of how the process is conducted and fulfilled, as most of the activities are done behind the closed doors of the prosecutor’s office. What is even more significant is the degree of apprehension about the legality of the system, and the allegation that the process neither serves the purpose which it claims to address nor promotes the justice system’s main objectives of retribution and deterrence. These controversies have resulted in enormous criticism and arguments on whether the concept of plea bargaining is a suitable and sincere reform or whether it is a transplant that encourages compromise the kind of compromise that breeds corruption in the legal system. This study explores the development of plea bargaining in Nigeria as well as the polemics th...

How the process of plea bargaining is affecting the traditional role of prosecutors and judges in criminal justice

Over the years, criminal justice systems across the world have seen an unprecedented rise in the ... more Over the years, criminal justice systems across the world have seen an unprecedented rise in the use of plea bargaining to negotiate with criminal offenders. This phenomenon, which is by far a shift from the traditional form of trial, has raised enormous concerns among practitioners and scholars. While it is true that plea bargaining provides the criminal justice system with an alternatives way of dealing with what could ordinary have been a long and costly trial in an open court, it is also evident that the lack of adversariality in the court system has affected the traditional role of the different parties that have legitimate interests and obligations in criminal justice. These include both court room actors as well as the public. While discussion on how all of these parties are affected is relevant to any discourse on plea bargaining, the limit of this paper is to explore the dynamics that explain the changing role of prosecutors and judges.

Cloaking Neo-Imperialism in the Shadows of Human Rights and Liberal Peacebuilding

Journal of Law, Policy and Globalization

The concept of intervention to curtail humanitarian crisis in conflict zones has generated a grea... more The concept of intervention to curtail humanitarian crisis in conflict zones has generated a great deal of polemics on the matters of state sovereignty, human rights, democracy and even the legitimacy of liberal peacebuilding. These discussions often include the justification or otherwise of both political and militarised interventions. While interventionism has become the most common approach by world powers, the concept of liberal peace building with its cloaked connotation of fostering and sustaining tranquillity and curtailing humanitarian crisis is seen by many as lacking in the not only the protection of people but also in ensuring sustainable peace. The view of some scholars is that, intervention in the name of humanitarianism raises so many questions as world powers continue resorting to militarised approaches that do not translate to the welfare of those they claim to protect. Instead, the outcome has been largely a convoluted and surging circle of crisis across many corners of the world.

Polemics on the Utility of Domestic Courts to Prosecute International Crimes

International Journal of Innovative Research and Development

Introduction Although the idea of having a court that will try international crimes has been disc... more Introduction Although the idea of having a court that will try international crimes has been discussed for some time, it was in 1947 that the U.N. General Assembly requested that the International Law Commission (ILC) to begin to codify the principles of international law that emerged from the Nuremberg Tribunal (Ellis, 2002). This process continued through 1950s, and in 1994, the ILC produced a comprehensive draft that was later to become the Statute to guide the role and jurisdiction of the International Criminal Court (ICC) (Lee, 2001). The draft was adopted as the Rome Statute in 1998 which established the ICC saddled with the role of investigating and prosecuting individuals accused of committing gross violations of international humanitarian law that include genocide, crimes against humanity, war crimes and the crime of aggression (Holmes, 1999; Ellis, 2002). For the purpose of the statute, Genocide is any act committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. Crime against humanity on the other hand is that widespread or systematic attack directed against any civilian population. The statute also defines war crimes is anything that amounts to a grave breach of the Geneva Conventions of August 12, 949, which includes willful killing or causing of great suffering, unlawful deportation or confinement, taking hostage, torture, inhuman treatment that involves extensive and unjustified destruction and appropriation of property, as well as hostility on prisoners of war or depriving them the rights of fair trial (Charney, 2001; Ellis, 2002; Sedman, 2010).The establishment of the ICC brought in a new regime of criminal adjudication onto the world stage where an international court is now given a jurisdiction to investigate and prosecute crimes committed in different parts of the world. This development in international legal regime generated polemics among scholars and commentators on whether the crimes mentioned in the Rome Statute should be tried by domestic courts or that such crimes be left to international jurisdiction (Doherty and Timothy, 1999; Sadat and Carden, 2000). Proponents of international prosecution are of the opinion that lack the capacity and the will to rigorously prosecute grave international crimes. As proponents argue for a strong international court regime, others are of the opinion that the most effective means of dealing with these crimes of international concern is to have robust domestic legal systems across the countries of the world (Charney, 2001). This way, the domain of the 'complementarity' principle features as a genuine support for national courts and further entrenches the principle of sovereignty. Likewise, resort to international courts will become less and rare to be evoked only when it becomes extremely necessary with clear evidence that a crime will go unpunished do to the unwillingness or inability of domestic courts to try such cases. As Jann pointed out, the standard of measuring 'unwillingness' is to determine and assess the State's subjective motive of intent and purpose behind the proceedings (Kleffner, 2003) In

Polemics on the Utility of Domestic Courts to Prosecute International Crimes

International Journal of Innovative Research and Development

Introduction Although the idea of having a court that will try international crimes has been disc... more Introduction Although the idea of having a court that will try international crimes has been discussed for some time, it was in 1947 that the U.N. General Assembly requested that the International Law Commission (ILC) to begin to codify the principles of international law that emerged from the Nuremberg Tribunal (Ellis, 2002). This process continued through 1950s, and in 1994, the ILC produced a comprehensive draft that was later to become the Statute to guide the role and jurisdiction of the International Criminal Court (ICC) (Lee, 2001). The draft was adopted as the Rome Statute in 1998 which established the ICC saddled with the role of investigating and prosecuting individuals accused of committing gross violations of international humanitarian law that include genocide, crimes against humanity, war crimes and the crime of aggression (Holmes, 1999; Ellis, 2002). For the purpose of the statute, Genocide is any act committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. Crime against humanity on the other hand is that widespread or systematic attack directed against any civilian population. The statute also defines war crimes is anything that amounts to a grave breach of the Geneva Conventions of August 12, 949, which includes willful killing or causing of great suffering, unlawful deportation or confinement, taking hostage, torture, inhuman treatment that involves extensive and unjustified destruction and appropriation of property, as well as hostility on prisoners of war or depriving them the rights of fair trial (Charney, 2001; Ellis, 2002; Sedman, 2010).The establishment of the ICC brought in a new regime of criminal adjudication onto the world stage where an international court is now given a jurisdiction to investigate and prosecute crimes committed in different parts of the world. This development in international legal regime generated polemics among scholars and commentators on whether the crimes mentioned in the Rome Statute should be tried by domestic courts or that such crimes be left to international jurisdiction (Doherty and Timothy, 1999; Sadat and Carden, 2000). Proponents of international prosecution are of the opinion that lack the capacity and the will to rigorously prosecute grave international crimes. As proponents argue for a strong international court regime, others are of the opinion that the most effective means of dealing with these crimes of international concern is to have robust domestic legal systems across the countries of the world (Charney, 2001). This way, the domain of the 'complementarity' principle features as a genuine support for national courts and further entrenches the principle of sovereignty. Likewise, resort to international courts will become less and rare to be evoked only when it becomes extremely necessary with clear evidence that a crime will go unpunished do to the unwillingness or inability of domestic courts to try such cases. As Jann pointed out, the standard of measuring 'unwillingness' is to determine and assess the State's subjective motive of intent and purpose behind the proceedings (Kleffner, 2003) In