The principle of legality and the prosecution of international crimes in domestic courts:
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Date
2019-06
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Kampala International University, School of Law
Abstract
The study examined the principle of legality and the prosecution of international crimes in
domestic courts. The study was guided by the following objectives;- to find out whether the
principle of legality is really a challenge to prosecuting acts that have already been recognized as
crimes under customary international law, to find out whether states are "wasting time" in "legal
gymnastics" and needlessly adhering to strict positivism, at the cost of accountability and justice
for victims of atrocities, to find out whether the victims of these atrocities even care for the legal
intricacies of definition and classification of crimes, and to find out whether prosecutions cannot
be based simply on predicate crimes such as murder, rape or assault since crimes against
humanity, genocide and war crimes are constituted by these very crimes. Under methodology the
study adopted a doctrine research approach this aimed at description. By utilizing qualitative
methodologies the research is able to evaluate both fotmal and normative aspects of political
activity.
The inhibiting role played by the national version of the principle of legality in Uganda's quest
for prosecution of international crimes is evident in the legislature's application of the Rome
Statute with prospective effect, the courts" reluctance to apply customary international law and
the prosecutors" extensive use of the Penal Code Act to prosecute underlying crimes in Uganda's
first domestic prosecution before the Intemational Crimes Division.
The study established that the principle of legality is absolute it is not waived for any crime and
especially not for international crimes. However, for these crimes, given their prior recognition
under custommy international law, their inherently evil and proscribed nature are presumed to be
foreseeable facts accessible by all states and, in consequence, all citizens within those states. As
a result, while a strict application of the principle of legality would be understandable in the
prosecution of national crimes, it would not be in the prosecution of international crimes, even
where the prosecution occurs in a domestic comi. This is because the crime remains an
international crime, retaining its unique attributes as such a crime, regardless of the comi in
which it is being prosecuted. The study posits that all the foregoing recommendations can be
implemented in domestic comis by local judges who are familiar with the cultural, social and
political context of their states, 1 without the need for expensive ventures that might make
international criminal justice seem expensive for and foreign to African states and which may
serve only to postpone the realisation of accountability.
Description
A research report submitted to the school of law in partial fulfillment of the requirement for the award of a Bachelor’s Degree in law of Kampala International University
Keywords
Legality, Prosecution, International crimes, Domestic courts, Uganda