The Role of ICC in Namibia's Governance

The assignment discusses how Namibia's governance has changed since the emergence of the ICC, which criminalized persecution based on gender crimes and crimes against humanity. It also examines why Namibia is no longer a state party to the ICC, despite having delivered a strong message to international communities.

Running head: ROME STATUTE AND INTERNATIONAL CRIMES IN NAMIBIA
Rome Statute and International Crimes in Namibia
Name of the Student
Name of the University
Author Note

1ROME STATUTES AND INTERNATIONAL CRIMES IN NAMIBIA
Abstract:
The literature review highlighted on the concepts of Roman Statute and the Prosecution of
International Crimes in Namibia. In this regard, it is noteworthy to mention here that in recent
years the African Union became excessively contentious towards the International Criminal
Court. The literature review is commissioned to examine the views of the African Union
regarding its retraction from the Rome Statute in the context of Namibia.

2ROME STATUTES AND INTERNATIONAL CRIMES IN NAMIBIA
Table of Contents
2. Introduction:..............................................................................................................................3
2.0 Nature and in relation to clarification the Rome Statute and the Prosecution of
International Crimes in Namibia:................................................................................................3
2.1 Historical Development of the Rome Statute and the Prosecution of International
Crimes:............................................................................................................................................4
2.2 Emergence and development of the Rome Statute and the Prosecution of International
Crimes in Namibia:........................................................................................................................5
2.3 The implementation of The Rome Statute and the Prosecution of International Crimes
in Namibia:.....................................................................................................................................6
2.4 Formation and formalities of The Rome Statute and the Prosecution of International
Crimes in Namibia and why the African Union is considering withdrawal From the Rome
Statute:............................................................................................................................................8
2.5 Conclusion:...............................................................................................................................9
References:...................................................................................................................................10

3ROME STATUTES AND INTERNATIONAL CRIMES IN NAMIBIA
2. Introduction:
2.0 Nature and in relation to clarification the Rome Statute and the Prosecution of
International Crimes in Namibia:
According to Article 21(1) (b) of the Rome Statute, the principles and rules of
international law shall be applied by the International Criminal Court1. In this regard, the
International Criminal Court has actively participated in global altercation for the purpose of
ending dispensation through the interaction of international criminal justice. However, these
goals cannot be fulfilled by the ICC alone and it requires the participation of a separate
international treaty. With the emergence of Rome Statute that has been identified as an
international treaty has effectively governed the activities of the ICC by making it the world’s
first international criminal court of justice.
In this regard, it is worth mentioning that in recent times, Namibia has rightly expressed
its views of withdrawing from the International Criminal Court. It is noteworthy to mention here
that, the ICC was promptly joined by Namibia after the independence as a result of the instability
of the internal institutions present at that time. According to the perspective of Nandi-Ndaiwah,
the Minister of Namibia, Namibia is no longer bound to participate in the activities of the ICC
because in recent era the country has established occupational governance institutions of its
own2.
1 Robinson, Darryl. "Inescapable Dyads: Why the International Criminal Court Cannot
Win." Leiden Journal of International Law 28.2 (2015): 323-347.
2 Posner, Eric A., and Alan O. Sykes. "Voting rules in international organizations." Chi. J. Int'l
L. 15 (2014): 195.

4ROME STATUTES AND INTERNATIONAL CRIMES IN NAMIBIA
2.1 Historical Development of the Rome Statute and the Prosecution of International
Crimes:
The Rome Statute often referred to as the International Criminal Court Statute which was
established by the International Criminal Court. However, the Rome statute was adopted in the
Rome Conference on July 1998, however it came into force from July, 2002. In this regard, four
major cores international crimes were established by the Rome Statute include- war crimes,
crimes against humanity, genocide and crime of aggression3. However, the Rome Statute was
formed due to several attempts for the purpose of creating international tribunal. It can be
observed that towards the end of the 19th century, major steps have been taken by the
international community for the purpose of instituting permanent courts having supranational
jurisdiction. It can be observed that the commitment of heinous crimes increased more than
before during the Second World War and therefore it became the major concern of the States to
prosecute the criminals who are responsible for the occurrence of such criminal activities. In this
regard, for the purpose of disclosing the basic principles of democratic civilisation, the inmates
were not severely tortured in the prisons rather a regular trial as conducted in which the criminals
had the right to defend themselves and were vested with the right to presumption of innocence.
The International Criminal Court is a legal framework which is involved in the
prosecution of international crimes since time immemorial. In this regard, the International
Criminal Court is vested with a permanent international jurisdiction for the purpose of
investigating and prosecuting various international crimes. In this regard, it is noteworthy to
mention here that the International Criminal Court is involved in the prosecution of genocide,
3 Rodman, Kenneth A. "Justice as a dialogue between law and politics: embedding the
International Criminal Court within conflict management and peacebuilding." Journal of
International Criminal Justice 12.3 (2014): 437-469.

5ROME STATUTES AND INTERNATIONAL CRIMES IN NAMIBIA
war crimes and war against humanity. The Rome statute created the International Criminal Court
in July 1998 for the purpose of prosecuting criminals committing serious international crimes.
However, currently the intention of the ICC is to act as the authority of last resort in the absence
of the national courts or when such national courts fails to prosecute severe international crimes.
In recent era, the only mechanism that is available to the States is the interference of the ICC for
the prosecution of political leaders who have engaged in crimes against humanity. The African
Union in 2015 adopted a protocol in order to provide authority to the African Court of Justice
and Human Rights for prosecuting heinous crimes however; no country has ratified such
protocol ye4t.
2.2 Emergence and development of the Rome Statute and the Prosecution of International
Crimes in Namibia:
On 25th June 2002, the Rome Statute added Namibia as its third state party. In this regard,
it is worth mentioning the fact that the Rome Statute forms as essential part of the Namibian Law
which is binding upon the State according to the provisions of Article 144 of the Constitution of
Namibia5. It is noteworthy to mention here that since time immemorial, various expectations and
legal obligations has been imposed by the Rome Statute on the member states. It can be observed
that such legal obligations have been imposed in order to ensure efficient prosecution of heinous
crimes by marking an end to the occurrence of such crimes. In inclusion to the legal obligations
arising from the Rome Statute, it is expected on the part of the state parties to consolidate the
4 Oosterveld, Valerie. "Constructive Ambiguity and the Meaning of “Gender” for the
International Criminal Court." International Feminist Journal of Politics 16.4 (2014): 563-580.
5 Rodman, Kenneth A. "Justice as a dialogue between law and politics: embedding the
International Criminal Court within conflict management and peacebuilding." Journal of
International Criminal Justice 12.3 (2014): 437-469.

6ROME STATUTES AND INTERNATIONAL CRIMES IN NAMIBIA
crimes as depicted in the Rome Statute in relation to the national legislation of the states. In this
regard, it can be mentioned that with the ratification of the Roman Statute, various legal
obligations has been taken by Namibia. The duty of the Namibian legislature is to provide
incorporation to the four major crimes, exercising its criminal jurisdiction and to prevent such
crimes from occurring in future.
For the purpose of prosecuting international crimes in Namibia, the establishment of the
International Criminal Court was encouraged. With the emergence of the ICC on July 2003, the
parts of African and generally the Southern African region provided efficient support6. In this
regard, the Rome Statute which being a multilateral treaty set up the International Criminal Court
has been incorporated by the South African Parliament for successful prosecution on serious
crimes in Namibia and other parts of Africa.
2.3 The implementation of The Rome Statute and the Prosecution of International Crimes
in Namibia:
It is worth noting that on 18th July 2002, the implementation of the Rome Statute was
passed of the International Criminal Court was passed by the Parliament of South Africa7. In this
regard, it is noteworthy to mention here that the objective of the Implementation Act was to
promote legal framework for effective functioning of the provisions of the Rome Statute in
Namibian laws. However, the Rome Statute is entirely attached to the Implementation Act as the
Rules depicted in such Act are referred to the Rules of Procedure and Evidence as illustrated in
Article 51 of the Rome Statute. These procedural rules have provided the Courts of South Africa
6 Wills, Alexander. "Old crimes, new states and the temporal jurisdiction of the International
Criminal Court." Journal of International Criminal Justice 12.3 (2014): 407-435
7 Bohlander, Michael, and Otto Triffterer. ". The Court." The Rome Statute of the International
Criminal Court. Nomos Verlagsgesellschaft mbH & Co. KG, 2015.

7ROME STATUTES AND INTERNATIONAL CRIMES IN NAMIBIA
with an opportunity to carry on efficient implementation of the substantive and procedural
provisions. It is therefore necessary on the part of the Parliament of Africa to enact laws in order
to specify the constitution of crimes in Namibia. In this regard, the definition of three major
crimes have been defined in the Implementation Act in relation to the definitions depicted Rome
Statute. In Section 1 of the Implementation Act, the definition of crime has been illustrated and
in this regard the definition of war crime has been depicted in Part 3 of the Rome Statute8.
With the implementation of the Rome Statute and the prosecution of International Crimes
in Namibia with the help of the ICC, the prosecutors are at the authority to involve themselves in
the process of prosecution and investigation and provide appropriate punishment to those
offenders who are guilty of such heinous crimes9. However, in recent era with proper evaluation
it has been revealed that various obligations may arise while incorporating the provisions in
relation to the requests made by the International Criminal Court for further assistance and
collaboration. It is noteworthy to include in this context that prior to the personification of the
Implementation Act in South Africa, the offenders guilty of crimes involving genocide, war
crimes and crimes against humanity has been put on trial and convicted10. However, the heinous
crimes have not been tried in the South African Courts as the permission of the International
Criminal Court has not been obtained.
8 Chappell, Louise, and Andrea Durbach. "The International Criminal Court: A Site of Gender
Justice?." (2014): 533-537.
9 Dancy, Geoff, and Florencia Montal. "Unintended Positive Complementarity: Why
International Criminal Court Investigations May Increase Domestic Human Rights
Prosecutions." American Journal of International Law 111.3 (2017): 689-723.
10 Okafor, Obiora Chinedu, and Uchechukwu Ngwaba. "The International Criminal Court as a
‘Transitional Justice’Mechanism in Africa: Some Critical Reflections." International Journal of
Transitional Justice 9.1 (2014): 90-108.

8ROME STATUTES AND INTERNATIONAL CRIMES IN NAMIBIA
2.4 Formation and formalities of The Rome Statute and the Prosecution of International
Crimes in Namibia and why the African Union is considering withdrawal From the Rome
Statute:
The Rome Statute has been at the Rome Conference which was held on 17th July 199811.
The International Criminal Courts were formed for the purpose of prosecuting criminals in
Namibia as a result of the intervention of the Rome Statute. About 124 member states are part of
the ICC out of which 34 are in Africa12. There were no such formalities associated with the
Roman Statute and the ICC however; the jurisdiction of the ICC from the very beginning is
limited to the four major crimes. Therefore, in such process matters regarding piracy and
terrorism have been excluded from its purview. However, a jurisdiction can be acquired by the
ICC in three ways. Firstly, a matter can be referred to the Court by a State Party. Secondly, the
UN Security Council is at the authority to refer a case. Thirdly, an investigation can be initiated
by an ICC prosecutor where any violation of the Roman Statute is observed.
According to the perspective of African leaders, since time immemorial the ICC is solely
focussed on the activities of Namibia13. In this regard, it is noteworthy to mention here that the
ICC mostly convicted individuals belonging to Namibia. In recent times, the ICC faced criticism
as it prevented itself from prosecuting politicians who have committed heinous crimes. In this
regard, Namibia’s International Relations and Co operations Minister have expressed his views
regarding the prosecution of politicians. According to him it is illegal and at the same time
11 Plomp, Caspar. "Aiding and Abetting: The Responsibility of Business Leaders under the Rome
Statute of the International Criminal Court." Utrecht J. Int'l & Eur. L. 30 (2014): 4.
12 De Búrca, Gráinne, Robert O. Keohane, and Charles Sabel. "Global experimentalist
governance." British Journal of Political Science 44.3 (2014): 477-486.
13 Oosterveld, Valerie. "Constructive Ambiguity and the Meaning of “Gender” for the
International Criminal Court." International Feminist Journal of Politics 16.4 (2014): 563-580.

9ROME STATUTES AND INTERNATIONAL CRIMES IN NAMIBIA
unsound to arrest the head of the state14. In recent years, Namibia has established functional
governance of its own and therefore the activities of the ICC are no longer its priority.
2.5 Conclusion:
In the conclusion it can be stated that since time immemorial, women and children were
subjected to all kinds of violence in Namibia. However, with the emergence of the ICC the
situation in Namibia changed. It is worth noting that the ICC which was established by the
Roman Statute criminalized persecution which was based on gender crimes and crimes against
humanity. It is noteworthy to mention that if Namibia remained a state party to the ICC, it would
have set an example for the other states. However, the assistance of the ICC was not required by
Namibia in order to address the issues regarding human rights abused within its region. It can be
finally concluded that staying as a member state of the ICC Namibia has delivered strong
message to the international communities.
14Jo, Hyeran, and Beth A. Simmons. "Can the International Criminal Court Deter
Atrocity?." International Organization70.3 (2016): 443-475.

10ROME STATUTES AND INTERNATIONAL CRIMES IN NAMIBIA
References:
Bohlander, Michael, and Otto Triffterer. ". The Court." The Rome Statute of the International
Criminal Court. Nomos Verlagsgesellschaft mbH & Co. KG, 2015.
Chappell, Louise, and Andrea Durbach. "The International Criminal Court: A Site of Gender
Justice?." (2014): 533-537.
Dancy, Geoff, and Florencia Montal. "Unintended Positive Complementarity: Why International
Criminal Court Investigations May Increase Domestic Human Rights Prosecutions." American
Journal of International Law 111.3 (2017): 689-723.
De Búrca, Gráinne, Robert O. Keohane, and Charles Sabel. "Global experimentalist
governance." British Journal of Political Science 44.3 (2014): 477-486.
Jackson, Miles. "Regional complementarity: the Rome Statute and public international
law." Journal of International Criminal Justice 14.5 (2016): 1061-1072.
Jo, Hyeran, and Beth A. Simmons. "Can the International Criminal Court Deter
Atrocity?." International Organization70.3 (2016): 443-475.
Okafor, Obiora Chinedu, and Uchechukwu Ngwaba. "The International Criminal Court as a
‘Transitional Justice’Mechanism in Africa: Some Critical Reflections." International Journal of
Transitional Justice 9.1 (2014): 90-108.
Oosterveld, Valerie. "Constructive Ambiguity and the Meaning of “Gender” for the International
Criminal Court." International Feminist Journal of Politics 16.4 (2014): 563-580.

11ROME STATUTES AND INTERNATIONAL CRIMES IN NAMIBIA
Plomp, Caspar. "Aiding and Abetting: The Responsibility of Business Leaders under the Rome
Statute of the International Criminal Court." Utrecht J. Int'l & Eur. L. 30 (2014): 4.
Posner, Eric A., and Alan O. Sykes. "Voting rules in international organizations." Chi. J. Int'l
L. 15 (2014): 195.
Robinson, Darryl. "Inescapable Dyads: Why the International Criminal Court Cannot
Win." Leiden Journal of International Law 28.2 (2015): 323-347.
Rodman, Kenneth A. "Justice as a dialogue between law and politics: embedding the
International Criminal Court within conflict management and peacebuilding." Journal of
International Criminal Justice 12.3 (2014): 437-469.
Tiemessen, Alana. "The International Criminal Court and the politics of prosecutions." The
International Journal of Human Rights 18.4-5 (2014): 444-461.
Wills, Alexander. "Old crimes, new states and the temporal jurisdiction of the International
Criminal Court." Journal of International Criminal Justice 12.3 (2014): 407-435.

12ROME STATUTES AND INTERNATIONAL CRIMES IN NAMIBIA