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Complementarity and Cultural Sensitivity: Decision-making by the International Criminal Court Prosecutor in the Darfur Situation

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This article argues that the normative basis of the International Criminal Court (ICC) is heavily influenced by a European Kantian interpretation of universal justice which, through the Court’s complementarity regime, comes into direct conflict with other global jurisprudential traditions such as that of Islam. Since the institutional architecture of the ICC has excluded any non-European or oriental concepts of universal jurisdiction, the encounter with Islam and more particularly Shari’ah, has become the most important confrontation which the Kantian ICC has had to face. It goes on to examine the reaction of the Islamic world to the Court as a Western instrument for great power influence. It takes the Darfur situation in Sudan as an example of prosecutorial insensitivity towards local culture and tradition in the operation of complementarity, concluding that the Court needs to decentralise its power to make it acceptable and justifiable to all nations. Furthermore, it suggests that dialogue and negotiation can play a crucial role to provide mutual understanding among different participants.

Affiliations: 1: Lecturer in Human Rights Law, University of Hull, Hull, UK


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