The principles of universal jurisdiction and complementarity: How do the two principles intermesh?

International Review of the Red Cross

Volumn 88, Issue , 2006, Pages 375-398

  Philippe, Xavier ^a  

^a AIX MARSEILLE UNIVERSITY   (France)

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EID: 85008907130     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383106000580     Document Type: Article

References (55)

1. See e.g. Kenneth C. Randall, ‘Universal jurisdiction under international law’, Texas Law Review, No. 66 (1988), pp. 785–8
2. International Law Association Committee on International Human Rights Law and Practice, ‘Final Report on the Exercise of universal jurisdiction in respect of gross human rights offences’, 2000, p. 2.
3. It should be noted that the principle of universal jurisdiction is not per se limited to criminal jurisdiction and could be extended, for instance, to civil responsibility. This is e.g. the case in the United States with the Alien Tort Act (28 U.S.C. para. 1350)
4. the well-known decision Filartiga v. Pena-Irala 630 F2d 876 (2d Cir. 1980). However, considering the framework of this article, only universal jurisdiction linked to individual criminal responsibility will be considered.
5. Mary Robinson, ‘Foreword’, The Princeton Principles on Universal Jurisdiction, Princeton University Press, Princeton, 2001, p. 16.
6. Géraud de La Pradelle, ‘La compétence universelle’, in Hervé Ascencio, Emmanuel Decaux and Alain Pellet (eds.), Droit international pénal, Ed. Pédone, Paris, 2000, p. 974.
7. See Grotius, De Jure Belli ac Pacis, 1625, Vol. II, Book II, Chap. XXI, para. 3, 1–2.
8. See for instance United States v. Smith, 18 US (5 Weat.) 153 at 161–2 (1820).
9. Under the London Agreement of 8 August 1945, Article 1 provided for the jurisdiction of the Tribunal for crimes having no precise geographical location and Article 4 for the jurisdiction of national courts over other war criminals. As Eric David puts it, this has more to do with judicial co-operation between states than with universal jurisdiction (Le droit des conflits armés, 3rd edn, Bruylant, Brussels, 2002, p. 722). However, within these provisions the spirit of universal jurisdiction (no safe haven for perpetrators of international crimes) was already present.
10. Also sometimes called grave breaches of international humanitarian law. See common articles GC I, Article 49
11. GC II, Article 50
12. GC III, Article 129
13. GC IV, Article 146. See also the extension made by Article 85 of Additional Protocol I to the Geneva Conventions to the listed crimes.
14. See Supr. Ct of Israel, Eichmann case, at 298–300
15. Supr. Ct of Canada, Finta, 24 March 1994, ILR, 104, at 305.
16. Eichmann case, above note 12.
17. Demanjuk v. Petrovsky, US Court of Appeal, 6th Cir., 31.10.1985, ILR 79, 546.
18. House of Lords, 24 March 1999, [1999] 2 WLR 827 (HL).
19. Cour d'Assises de Bruxelles, 8 June 2001, available at (last visited March 2006).
20. See e.g. ‘Final report’, above note 4. The following fourteen principles are usually accepted as the guiding principles on universal jurisdiction. They have been inspired by the Princeton principles, above note 5, and are also referred to by non-governmental organizations (NGOs) promoting the principle of universal jurisdiction. See Amnesty International, ‘Universal Jurisdiction: 14 Principles on the Effective Exercise of Universal Jurisdiction’, May 1999, AI Index: IOR 53/01/99: 1.
21. See Antonio Cassese, International Criminal Law, Oxford University Press, Oxford, 2003, p. 285.
22. On this issue of trial in abstentia see the ICJ case Democratic Republic of Congo v. Belgium, Warrant Arrest 11 April 2000 Case, 14.02.02. ICJ Rep. 2002.
23. Bartram S. Brown, ‘Primacy or complementarity: Reconciling the jurisdiction of national courts and international criminal tribunals’, Yale Journal of International Law, Vol. 23, p. 386. 1998.
24. But see, on the limited impact of this change: Michael A. Newton, ‘Comparative complementarity: Domestic jurisdiction consistent with the Rome Statute of the ICC’, Military Law Review, Vol. 167 (March 2001), p. 20.
25. Mohamed M. El Zeidy, ‘The principle of complementarity: A new machinery to implement international criminal law’, Michigan Journal of International Law, Vol. 23 (Summer 2002), p. 870.
26. See e.g. Cassese, above note 18, p. 351.
27. See preambular para. 10: ‘The International Criminal Court … shall be complementary to national jurisdictions.’
28. John T. Holmes, ‘Complementarity: National courts versus the ICC’, in A. Cassese, P. Gaeta, J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, ch. 18.1, p. 672.
29. Brown, above note 22, p. 389.
30. Holmes, above note 29, ch. 18.1, p. 671.
31. See e.g. the analysis by J. T. Holmes comparing the ICC Statute with the ILC Draft Statute, above note 29, pp. 673–4.
32. Holmes, above note 29, p. 677.
33. See, e.g., Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 4 Sept. 1956, 266 UNTS 3
34. International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted 30 Nov. 1973, 1015 UNTS 244
35. Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature 16 Dec. 1970, 10 ILM 133
36. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, opened for signature 23 Sept. 1971, 10 ILM 1151
37. International Convention against the Taking of Hostages, adopted 12 Dec. 1979, G.A. Res. 34-146
38. UN GAOR, 34th Sess., Supp. No. 99, UN Doc. A/34/819, 18 ILM 1456 (1979)
39. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, S. Treaty Doc. N. 100–20, 1465 UNTS 85.
40. For more details, see H. Osofsky, ‘Foreign sovereign immunity for severe human rights violations: New directions for common law based approaches’, New York International Law Review, Vol. 11 (1998), p. 35.
41. Common articles GC I, Art 49
42. GC II, Article 50
43. GC III, Article 129
44. GC IV, Article 146: The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case. Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article… (emphasis added).
45. ‘Rule 157: States have the right to vest universal jurisdiction in their national courts over war crimes’, Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law. Vol. 1: Rules, Cambridge University Press, Cambridge, 2005, p. 604.
46. This is an integral part of the ICC Statute. As outlined by some authors (see e.g. Kriangsag Kittichaisaree, International Criminal Law, Oxford University Press, Oxford, 2001, pp. 25 f.), this was not the case for the ICTY and the ICTR, since their statutes provided for primacy of the international ad hoc Tribunal and complementarity or at least concurrent jurisdiction for the national courts. Under the ICC Statute the system is inverted.
47. See the Yerodia case (DRC v. Belgium: The Warrant of Arrest from the 11th of April 2000 Case, ICJ, 14 February 2002), where this issue was discussed.
48. See Holmes, above note 29, p. 678. The hypothetical case described by Holmes is quite interesting. The author suggests that if a perpetrator has been prosecuted tried, punished and later pardoned, it would be very difficult in certain cases to offer evidence that Article 17 conditions had not been met when the trial took place before the national court.
49. Even though the principle of complementarity was not at stake in the DRC v. Belgium case (above note 50), the limits of universal jurisdiction v. realities of diplomacy showed up. The ICJ did not expressly examine the issue of universal jurisdiction in abstentia, and it could hardly be said that the decision sets aside this issue. However, the case itself as well as some other indictments against politicians known worldwide led to the amendment of the 1993/1999 Act on Universal Jurisdiction in 2003. See David, above note 10, p. 817
50. M. Halberstam, ‘Belgium's universal jurisdiction law: Vindication of international justice or pursuit of politics?’, 2003 Cardozo Law Review, Vol. 25, p. 247.
51. United States v. William L. Calley, Jr, US Court of Military Appeals, 21 December 1973, 22 USCMA 534 (1973).
52. See Henry J. Steiner, ‘Three cheers for universal jurisdiction - or is it only two?’, Theoretical Inquiries in Law, Vol. 5 (2004), pp. 201 f. and 229 f.
53. See P. Kirsch's presentation of the first report to the General Assembly of the United Nations [UN Doc A.60/177], available at (last visited March 2006).
54. On the obstacles to the exercise of universal jurisdiction, see ‘Final Report’, above note 3, p. 10.
55. See in this regard John Dugard, ‘Possible conflicts of jurisdiction with truth commissions’, in Cassese et al., above note 29, ch. 18.3, p. 693.