| Publication |
2009.
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| Summary/Abstract |
The proliferation of civil militia groups across Africa poses one of the greatest security
tests not only to African nations, but to the greater international community. Given
that international criminal law is constantly evolving in response to new and ever more
complicated issues, it is important to evaluate the role that this can play in addressing
the challenge of civil militia groups. In the case of Kenya, the dual concerns of the rising
strength of civil militia groups and a crumbling police and judicial system continue to
undermine the ability of the nation to secure lasting peace and thus development. There
is a palpable tension between the need to bring civil militias to book over their crimes
and the need to respect national judicial sovereignty, particularly in a state that is viewed
as failing rather than failed. To gain a better understanding of these legal challenges, it
is necessary to develop a framework to assess which crimes committed by civil militia
could potentially fall under the mandate of the International Criminal Court. This
article makes suggestions for a rudimentary basis for such a framework, and discusses
the challenge that civil militias pose to national and international judicial organs.
Finally, it evaluates the value that prosecution of such groups could add to the national
judicial tradition. It argues that the potential benefits of a prosecution far outweigh the
risks, and that a complementarity regime offers opportunities for cooperation between
international criminal law organisations such as the International Criminal Court and
the national judicial system of Kenya.
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