Complementarity: A tale of two notions

Criminal Law Forum

Volumn 19, Issue 1, 2008, Pages 87-113

  Stahn, Carsten ^a,b,c  

^a NYU

^b Swansea University ^*

^c SWANSEA UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 41149126881     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1007/s10609-007-9051-8     Document Type: Conference Paper

References (94)

1. See e.g. John T. Holmes, Complementarity: National Courts versus the ICC, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, Vol. I, 667-685 (Antonio Cassese et al., eds. 2002);
2. Jann Kleffner, The Impact of Complementarity on National Implementation of Substantive International Criminal Law, 1 J. INT'L CRIM. J. (2003), 86;
3. Jann K. Kleffner & Gerben Kor, Complementary views on Complementarity (2006);
4. Mohamed El Zeidy, The Principle of Complementarity: A New Machinery to Implement International Criminal Law, MICH. J. INT'L L., 869 (2002);
5. id., THE PRINCIPLE OF COMPLEMENTARITY IN INTERNATIONAL CRIMINAL LAW, Ph.D. Thesis, National University of Ireland (2007);
6. William Burke-White, Complementarity in Practice: The International Criminal Court as Part of a System of Multi-level Global Governance in the Democratic Republic of Congo, 18 LEIDEN J. INT'L L. 557 (2005);
7. Federica Gioia, 'State Sovereignty, Jurisdiction and 'Modern' International Law: The Principle of Complementarity in the International Criminal Court, 19 LEIDEN J. INT'L L. 1095 (2006);
8. Kevin J. Heller, The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process, 17 CRIM. L. FORUM 255 (2006);
9. Markus Benzing, The Complementarity Regime of the International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight Against Impunity, 7 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW 591 (2003);
10. Héctor Olásolo, The Triggering Procedure of the International Criminal Court, Procedural Treatment of the Principle of Complementarity, and the Role of the Prosecutor, 5 INT'L CRIM. L. REV. 121 (2005);
11. Carsten Stahn, Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court, 3 J. INT'L CRIM. JUSTICE 695 (2005).
12. See however, Office the Prosecutor, Informal Expert paper: The principle of complementarity in practice (2003), at http://www.icc-cpi.int/ otp/complementarity.html;
13. William Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice, University of Pennsylvania Law School, Public Law and Legal Theory Research Paper No. 07-08, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=964201.#Paper. Download;
14. id. Implementing a Policy of Positive Complementarity in the Rome System of Justice, 18 CRIM. L. FORUM (2007);
15. El Zeidy, THE PRINCIPLE OF COMPLEMENTARITY IN INTERNATIONAL CRIMINAL LAW, supra note 1, at 336-345.
16. See Office the Prosecutor, Informal Expert paper: The principle of complementarity in practice, 14 September 2006, para. 3, at http://www.icc-cpi.int/library/organs/otp/OTP_Prosecutorial-Strategy- 20060914_English.pdf
17. Office of the Prosecutor, Report on the activities performed during the first three years (June 2003-June 2006), 12 September 2006, p. 7, at http://www.icc-cpi.int/library/organs/otp/OTP_3-year-report-20060914_English.pdf
18. See Burke-White, Implementing a Policy of Positive Complementarity, supra note 2;
19. El Zeidy, THE PRINCIPLE OF COMPLEMENTARITY IN INTERNATIONAL CRIMINAL LAW, supra note 1, at 336-345.
20. For a general assessment of the Court's first practice, see William Schabas, First Prosecutions at the International Criminal Court, 27 HUMAN RIGHTS L. J. 25 (2006);
21. Mahnoush H. Arsanjani & W. Michael Reisman, The Law-in-Action of the International Criminal Court, 99 AM. J. INT'L L. 385 (2005).
22. See generally Francisco Orrego Vicuña, INTERNATIONAL DISPUTE SETTLEMENT IN AN EVOLVING GLOBAL SOCIETY: CONSTITUTIONALIZATION, ACCESSIBILITY, PRIVATIZATION (2004).
23. See International Law Commission, Draft Statute for an International Criminal Court (1994), at http://untreaty.un.org/ilc/texts/instruments/ english/draft%20articles/7_4_1994.pdf
24. See also Holmes, supra note 1, at 670-671.
25. See para. 3 of the preamble of the 1994 Draft Statute.
26. Ibid., Article 35.
27. See Article 17 (1) of the Rome Statute ('The Court shall'). See also Article 18 (2) (the 'Prosecutor shall').
28. See generally Mireille Delmas-Marty, The ICC and the Interaction of International and National Legal Systems, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, Vol. II, 1915 (Antonio Cassese et al., eds. 2002).
29. See para. 4 of the preamble and Article 1 of the Rome Statute.
30. See para. 5 of the preamble.
31. See para. 4 of the preamble.
32. See paras. 10 and 11 of the preamble.
33. See Jann Kleffner, Complementarity as a Catalyst for Compliance, in Kleffner & Kor, supra note 1, at 81.
34. See generally Luc Côté, Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law, 3 J. INT'L CRIM. JUSTICE 162 (2005);
35. Matthew R. Brubacher, Prosecutorial Discretion within the International Criminal Court, 2 J. INT'L CRIM. JUSTICE 71 (2004).
36. For an assessment of gravity under the Rome Statute, see Ray Murphy, Gravity Issues and the International Criminal Court, 17 CRIM. L. FORUM 281 (2006).
37. The Statutes of the ad hoc tribunals are silent on the question of assistance to States. See Goran Sluiter, INTERNATIONAL CRIMINAL ADJUDICATION AND THE COLLECTION OF EVIDENCE: OBLIGATION OF STATES 85-86 (2002).
38. See also Office the Prosecutor, Informal Expert paper: The principle of complementarity in practice, para. 10.
39. See e.g. Holmes, supra note 1, at 671-678;
40. Gioia, supra note 1, at 1095-1105.
41. President Kirsch noted in a keynote address in 1999: 'If a national system functions properly, there is no reason for the ICC to assume'. See Cornell International Law Journal Symposium, 32 CORNELL INT'L L. J. 438 (1999). A similar image was used by the Prosecutor in his statement at the 7th diplomatic briefing in Salzburg (2006): '[I]ntervention by the ICC must be exceptional - it will only step in when states fail to conduct investigations and prosecutions, or where they purport to do so but in reality are unwilling or unable to genuinely carry out proceedings [...]'.
42. See Prosecutor's Statement at the 7th Diplomatic Briefing, Salzburg (2006), at http://www.icc-cpi.int/library/about/DB7-St_English.pdf.
43. See also Office of the Prosecutor, Report on the activities performed during the first three years (June 2003-June 2006), para. 58.
44. See Office the Prosecutor, Informal Expert paper: The principle of complementarity in practice, para. 3.
45. See Office of the Prosecutor, Report on the activities performed during the first three years (June 2003-June 2006), para. 2.
46. See Office of the Prosecutor, Report on Prosecutorial Strategy, para. 2.
47. See also Office of the Prosecutor, Report on the activities performed during the first three years (June 2003-June 2006), para. 58.
48. See the various statements of NGO representatives (Human Rights Watch, International Federation for Human Rights, No Peace Without Justice) at the Second Public Hearing of the Office of the Prosecutor, at http://www.icc-cpi. int/organs/otp/otp_public_hearing/otp_ph2.html
49. See generally Gioia, supra note 1, at 1100.
50. See ICTY, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-I-AR72, 2 October 1995, para. 97.
51. See generally Philippe Kirsch & Darryl Robinson, Initiation of Proceedings by the Prosecutor, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, Vol. I, 660 (Antonio Cassese et al., eds. 2002).
52. See the statements above, supra note 24.
53. See Article 17 (2).
54. See Article 17 (1) and Article 82 (1) (a) which provides for a direct appeal to the Appeals Chamber.
55. See Sharon A. Williams, On Article 17, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 394 (Otto Triffteer ed., 1999).
56. See Article 53(1) and Rule 48.
57. See Article 18 (3).
58. See Article 19 (11).
59. Classical complementarity has come into play in several forms in the course of the past years. The most visible impact of the complementarity scheme has been its effect on domestic legislation. States have begun to amend their domestic judicial systems even before entry into force of the Rome Statute. By 2007, 41 states have notified the Court of their implementing legislation. This practice provides evidence that complementarity serves a catalyst for compliance. The threat-based side of complementarity has further become apparent, on at least two occasions, in the first practice of the Court, namely in the situations of Darfur and Uganda. In the context of the Darfur situation, the complementarity regime has partly served as a catalyst for the creation of domestic courts. The decision of the Prosecutor to initiate an investigation on 31 March 2005 was accompanied by the establishment of the Darfur Special Court in June 2005 and the creation of two additional Sudanese Courts in November 2005. In the situation in Uganda, the threat emerging from the execution of the warrants of arrest influenced the dialogue over the appropriate forms of justice in the peace process. LRA leaders sought advice from lawyers to educate and instruct them about the Rome Statute. Moreover, there are signs that the criteria under article 17 encourage domestic leaders to channel justice through domestic Court proceedings, rather than traditional mechanisms of confession and apology ('mato oput', i.e. the 'drinking of the bitter root from a common cup'). See Mansuli Ssenyonjo, The International Criminal Court and the Lord's Resistance Army Leaders: Prosecution or Amnesty, Netherlands International Law Review, Vol. LIV (2007), 51, at 64-65.
60. See also Burke-White, Proactive Complementarity, supra note 2, at 4-5.
61. See also Burke-White, Implementing a Policy of Positive Complementarity in the Rome System of Justice, supra note 2.
62. The most compelling example is the option of reverse cooperation which allows the Court to provide assistance to states in order to enable them to exercise jurisdiction.
63. See Office the Prosecutor, Informal Expert paper: The principle of complementarity in practice, para. 2 ('[T]he Prosecutor's objective is not to 'compete' with States for jurisdiction, but to help ensure that the most serious international crimes do not go unpunished and thereby to put an end to impunity').
64. Ibid, para. 3.
65. Ibid, para. 4.
66. Ibid, para. 3.
67. Ibid, para. 3.
68. Ibid, para. 3.
69. Ibid, para. 14.
70. See the authors listed in note 2.
71. See Burke-White, Proactive Complementarity, supra note 2, at 19.
72. Chief Prosecutor Luis Moreno-Ocampo stated at the ceremony for solemn undertaking on 16 June 2003 that 'the absence of trials before [the ICC], as a consequence of the regular functioning of national institutions, would be a major sucess'. Later, the concept was backed by legal considerations. See Office the Prosecutor, Informal Expert paper: The principle of complementarity in practice, paras. 59-66.
73. See para. 4 of the preamble of the Rome Statute.
74. See Article 15 (3) and Rule 48 as well as Article 53 (1) ('shall').
75. See Office the Prosecutor, Informal Expert paper: The principle of complementarity in practice, paras. 18 and 19: 'Where no State has initiated any investigation (the inaction scenario) [...], none of the alternatives of Articles 17(1)(a)-(c) are satisfied and there is no impediment to admissibility. Thus, there is no need to examine the factors of unwillingness or inability: the case is simply admissible under the clear terms of Article 17 [...]. [I]t is only where a State is investigating or prosecuting, or has already completed such a proceeding, that Articles 17(1) (a)-(c) are engaged. In such circumstances, the case will be inadmissible, unless the exceptions in those provisions are established.' See also Pre-Trial Chamber I, Decision on the Prosecutor's Application for a warrant of arrest, 10 February 2006, para. 29 ('A case is 'admissible only if those States with jurisdiction over it have remained inactive in relation to that case or are unwilling or unable, within the meaning of article 17 (1) (a)-(c), 2 and 3 of the Statute').
76. See Carsten Stahn, Mohamed El Zeidy & Hector Olásolo, The International Criminal Court's Ad Hoc Jurisdiction Revisited, 99 American Journal of International Law 421, 423 (2005).
77. See Olásolo, supra note 1, at 133-134.
78. Note however that a disengagement may be subject to judicial review under Article 53 (3). On definition of interests of justice, see OTP, policy paper on the interests of justice, September 2007.
79. See Office the Prosecutor, Informal Expert paper: The principle of complementarity in practice, para. 14.
80. See Office the Prosecutor, Informal Expert paper: The principle of complementarity in practice, para. 7.
81. See, however, Office of the Prosecutor, Report on Prosecutorial Strategy, para. 2;
82. Office of the Prosecutor, Report on the activities performed during the first three years (June 2003-June 2006), para. 58.
83. See Office the Prosecutor, Informal Expert paper: The principle of complementarity in practice, para. 61 (Article 17 does not require any branding of the State as 'unable').
84. Ibid.
85. Ibid. para. 61 and note 24.
86. See Office of the Prosecutor, Report on the activities performed during the first three years (June 2003-June 2006), para. 2.
87. See generally Claus Kress, 'Self-Referrals' and 'Waivers of Complementarity', 2 Journal of International Criminal Justice 944 (2004);
88. Mohamed El Zeidy, The Ugandan Government Triggers the First Test of the Complementarity Principle: An Assessment of the First State's Party Referral to the ICC, 5 International Criminal Law Review 83 (2005).
89. See Schabas, supra note 6, at 32.
90. The OTP applied a quantitative assessment in its response to the communication concerning Iraq. See Office of the Prosecutor, Communication on Iraq, p. 9, at http://www.icc-cpi.int/library/organs/otp/ OTP_letter_to_senders_re_Iraq_9_February_2006.pdf ('It is worth bearing in mind that the OTP is currently investigating three situations involving long-running conflicts in Northern Uganda, the Democratic Republic of Congo and Darfur. Each of the three situations under investigation involves thousands of wilful killings as well as intentional and large-scale sexual violence and abductions. Collectively, they have resulted in the displacement of more than 5 million people. Other situations under analysis also feature hundreds or thousands of such crimes. Taking into account all the considerations, the situation did not appear to meet the required threshold of the Statute').
91. See Office of the Prosecutor, Report on Prosecutorial Strategy, para. 2.
92. Four legal research and reference tools have been developed by the Court: the Case Matrix, the Elements Commentary, the Proceedings Commentary and the Means of Proof document. See ICC, Legal Tools, at http://www.icc-cpi.int/legal_tools.html
93. See also Office the Prosecutor, Informal Expert paper: The principle of complementarity in practice, para. 10.
94. See Article 93 (10).