State Sovereignty, Jurisdiction, and ‘Modern’ International Law: The Principle of Complementarity in the International Criminal Court

Leiden Journal of International Law

Volumn 19, Issue 4, 2006, Pages 1095-1123

  Gioia, Federica ^a  

^a International Criminal Court ^*  (Netherlands)

Author keywords

complementarity; ICTR; ICTY; International Criminal Court; obligations erga omnes; primacy; sovereignty; universal jurisdiction

Indexed keywords

EID: 85010161603     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156506003761     Document Type: Article

References (106)

1. Pursuant to Art. 126(1), the Statute would enter into force ‘on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations’.
2. ‘The enactment of the ICC Statute… represents the pinnacle of the institutionalization and universalization of measures for the enforcement of international humanitarian law. The ICC fulfils the purposes of… a symbol of justice’ and ‘is likely to become the central pillar in the world community for upholding fundamental dictates of humanity'” A. Cassese, ‘From Nuremberg to Rome” International Military Tribunals to the International Criminal Court’, in A. Cassese, P. Gaeta, and J. R.W. D. Jones (eds.), The Rome Statute of the International Criminal Court” A Commentary (2002) 3, at 18.
3. The jurisdiction of the ICC over the crime of aggression is conditional upon such crime being definedwithin the context of the reviewwhich states parties are mandated to undertake seven years after its entry into force (Art. 5(2), Art. 123 of the Statute).
4. Report of the Commission on the Responsibility of the Authors of theWar and on Enforcement of Penalties (presented to the Preliminary Peace Conference 29March 1919), Ch. III” impunity for ‘the greatest outrages against the laws and customs of war and the laws of humanity… would shock the conscience of civilized mankind’.
5. A. Cassese, International Criminal Law (2003), 351, identifies ‘the intent to respect State sovereignty as much as possible’ as the ‘principled motivation’ underlying the complementarity regime. For J. T. Holmes, ‘The Principle of Complementarity’, in R. S. Lee (ed.), The International Criminal Court-The Making of the Rome Statute (1999), 41, at 75, the fact that some of the criteria for determining admissibility (namely, those relating to a state's ‘unwillingness') will ‘require the Court to be satisfied as to the intent of the State in the circumstances’ amounts to a weakness; M. Benzing, ‘The Complementarity Regime of the International Criminal Court” International Criminal Justice Between State Sovereignty and the Fight Against Impunity’, (2003) 7 Max PlanckUNYB 591, at 595, maintains that ‘the complementarity regime… is designed to protect and serve… the sovereignty both of State parties and third States'; F. Lattanzi, ‘The Rome Statute and State Sovereignty. ICC Competence, Jurisdictional Links, Trigger Mechanisms’, in F. Lattanzi-W. Schabas (eds.), Essays on the Rome Statute of the International Criminal Court, Vol. 1 (1999), 51, at 54, argues that the defeat of the German proposal on universal jurisdiction in Rome was ‘an excessive tribute’ paid to state sovereignty.
6. G. Kor, ‘Sovereignty in the Dock’, in J. K. Kleffner and G. Kor (eds.), Complementary Views on Complementarity, Proceedings of the International Roundtable on the Complementary Nature of the International Criminal Court, Amsterdam, 25/26 June 2004 (2006), 53, at 64, refers to a state's ‘right and power to adjudicate’ as ‘judicial sovereignty’. See also Benzing, The jurisdiction of the ICC over the crime of aggression is conditional upon such crime being definedwithin the context of the reviewwhich states parties are mandated to undertake seven years after its entry into force note 8, at 595, identifying in the exercise of criminal jurisdiction ‘a central aspect of sovereignty itself’.
7. For general remarks on the meaning of ‘sovereign equality’, and its implications in the current age, see B. Fassbender and A. Bleckmann, ‘Commentary on Article 2(1)’, in B. Simma (ed.), The Charter of the United Nations-A Commentary (2002), I, 68, at 89; M. Kohen, ‘Commentaire sub Article 2.1’, in J. P. Cot, A. Pellet, and M. Fortaud (eds.), La Charte des Nations Unies-Commentaire article par article (2005), 399, in particular at 406. 11. The sole exception to this all-pervading principle, vesting a sort of ‘right to non-interference’ in states parties of theUN, is provided in respect of the application of enforcement measures adopted by the Security Council under Chapter VII of the Charter, i.e. in the exercise of its primary function of guardian of international example of such exceptions. In general, on Art. 2(7), see G. Nolte, ‘Commentary’, in Simma, The jurisdiction of the ICC over the crime of aggression is conditional upon such crime being definedwithin the context of the reviewwhich states parties are mandated to undertake seven years after its entry into force note 10, I, 148; G. Guillaume, ‘Commentaire sub Article 2.1’, in Cot, Pellet, and Fortaud, The jurisdiction of the ICC over the crime of aggression is conditional upon such crime being definedwithin the context of the reviewwhich states parties are mandated to undertake seven years after its entry into force note 10, 485 ff. See also Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986, [1986] ICJ Rep. 14, para. 202 ('the principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference’, ‘is part and parcel of customary international law’ although not specifically spelt out in the UN Charter, and is ‘a corollary of the principle of the sovereign equality of States').
8. Pursuant to Art. 2 of the Statute, the ICCwould have been ‘brought into relationship with theUnitedNations through an agreement to be approved by the Assembly of States Parties’. Such an agreement (available at http//www.icc-cpi.int/library/asp/ICC-ASP-3-25-III_English.pdf, last visited 3 Aug. 2006) was concluded by Philippe Kirsch, president of the ICC, and Kofi Annan, UN Secretary-General, on 4 October 2004; this conclusion was welcomed by the Fourth Assembly of the States Parties in 2005 (available at http//www.icccpi. int/library/asp/PartIII_-_Resolutions.pdf, last visited 3 Aug. 2006).
9. This solution was adopted for the panels established by the United Nations within the District Court in Dili in East Timor, endowed with exclusive (as well as universal) jurisdiction over certain serious criminal offences as specified in relevant regulations (see United Nations Transitional Administration in East Timor, Regulation No. 2000/15, ss. 1 and 2).
10. The jurisdiction of the ICC over the crime of aggression is conditional upon such crime being definedwithin the context of the reviewwhich states parties are mandated to undertake seven years after its entry into force., at 881. The author (at 879) also notes that the principle that emerged during the early efforts to establish an international penal tribunal (in the context of the works on theUNGenocide Convention) ‘is the outcome of two combined factors, namely, the respect of national sovereignty and the need to facilitate international criminal justice to repress genocide’.
11. Statute, 11th preambular paragraph.
12. Statute, 3rd preambular paragraph.
13. Security Council Resolution 827, 25May 1993 (UN Doc. S/Res/827 (1993)).
14. Security Council Resolution 935, 1 July 1994 (UN Doc. S/Res/935 (1994)).
15. Although within the boundaries and under the constraints entailed by their ‘closing strategy’, i.e. on the assumption of their winding up by the end of 2010” see Security Council Resolution 1503, 28 August 2003 (UN Doc. S/RES/1503 (2003)).
16. ‘Report of the Secretary General pursuant to paragraph 2 of Security Council Resolution 808 (1993)’ (UN Doc. S/25704, 3May 1993), para. 28.
17. Statute, 3rd preambular paragraph., paras. 17-19.
18. Statute, 3rd preambular paragraph., para. 15” the ICTY could not be considered as ‘totally fashioned to the smallest detail by its creator and… totally in its power and at itsmercy’.
19. Statute, 3rd preambular paragraph., para. 24.
20. Statute, 3rd preambular paragraph., para. 55.
21. Statute, 3rd preambular paragraph., para. 97.
22. R. Steinhardt, ‘Book Review” Jü rgen Schwarze, European Administrative Law’, (1994) 28 George Washington Journal of International Law and Economics 225, at 240.
23. A parallel rule is set forth in Art. 8 of the ICTR Statute.
24. Tadic’, A parallel rule is set forth in Art. note 23, para. 58.
25. See Art. 17 of the Statute.
26. Cassese, Gaeta, and Jones, Art. 17 of the Statute. note 2, at 1906. See also, among many, Holmes, Art. 17 of the Statute. note 8, at 73 (defining complementarity as ‘one of the cornerstones’ of the ICC).
27. J. T. Holmes, ‘Complementarity” National Courts versus the ICC’, in Cassese, Gaeta, and Jones, Art. 17 of the Statute. note 2, 667, at 668.
28. Holmes, ‘Complementarity” National Courts versus the ICC’ note 34, at 671.
29. Holmes, ‘Complementarity” National Courts versus the ICC’ note 34, at 667.
30. ‘Complementarity” National Courts versus the ICC’., at 673, recalls the effort, throughout thenegotiations, ‘to developanapproachwhichensured respect for the principle of complementarity, founded on national sovereignty and the obligations of States to prosecute, and yetwhich allowed the ICC scope to assume jurisdiction where doubts existed that States would or could follow through’.
31. Cassese, ‘Complementarity” National Courts versus the ICC’. note 8, at 4.
32. Case Concerning the Barcelona Traction, Light and Power Company Limited, Second Phase, Judgment, 5 February 1970, [1970] ICJ Rep. 32, paras. 33 ('an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes') and 34 ('Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law… others are conferred by international instruments of a universal or quasi-universal character').
33. Institut de droit international, Fifth Commission, Resolution ‘Obligations erga omnes in international law’, 27 August 2005, Rapporteur G. Gaja (available at http//www.idi-iil.org/idiE/resolutionsE/ 2005_kra_01_en.pdf, last visited 16 Aug. 2006).
34. See the draft articles on ‘Responsibility of States for InternationallyWrongful Acts’, adopted by the ILC in 2001 at its fifty-third session, Art. 33 (Annex to GA Resolution 56/83 of 12 December 2001).
35. Cassese, ‘Complementarity” National Courts versus the ICC’. note 8, at 4. See also Ragazzi, ‘Complementarity” National Courts versus the ICC’. note 42, at 17.
36. See the Preamble to Institut de droit international 2005 Resolution (‘Complementarity” National Courts versus the ICC’. note 41), maintaining that ‘a wide consensus exists to the effect that the prohibition of acts of aggression, the prohibition of genocide, obligations concerning the protection of basic human rights… are examples of obligations reflecting’ the fundamental values of the international community.
37. Goodwin-Gill, ‘Complementarity” National Courts versus the ICC’. note 42, at 213.
38. 1966 Vienna Convention on the Law of Treaties, Art. 53” ‘a peremptory norm of general international law is a norm accepted and recognized by the international community of States as awhole as a norm fromwhich no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.
39. As of 3 August 2006, the Statute counted 100 ratifications (Mexico's being the most recent).
40. Ragazzi, ‘Complementarity” National Courts versus the ICC’. note 42, at 55-6.
41. ‘Il fautque la convictionducaractè re impé ratifde la rè gle soitpartagé epar toutes les composantes essentielles de la communauté internationale et non seulement, par exemple, par les Etats de l'Ouest ou de l'Est, par les pays dé veloppé s ou en voie de dé veloppement, par ceux d'un continent ou d'un autre'” R. Ago, ‘Droit des traité s à la lumiè re de la Convention de Vienne-Introduction’, in Collected Courses of the Hague Academy of International Law (1971), III, 297, at 323.
42. Ragazzi, ‘Complementarity” National Courts versus the ICC’. note 42, at 133-4, lists this as one of the elements characterizing obligations erga omnes.
43. Part 9 of the Statute, ‘International cooperation and judicial assistance’, Arts. 86-102.
44. Failure to co-operate triggers the power of the Court to ‘make a finding to that effect and refer the matter to theAssembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council’, on the assumption that either forum would stigmatize (and possibly take action in respect of) the violation of a state's fundamental duty.
45. Institut de droit international 2005 Resolution, Failure to co-operate triggers the power of the Court to ‘make a finding to that effect and refer the matter to theAssembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council’ note 41, Art. 1(a).
46. Failure to co-operate triggers the power of the Court to ‘make a finding to that effect and refer the matter to theAssembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council’., Art. 1(b).
47. The rules governing the procedural functioning of the principle of complementarity seem of further significance in this respect. Even when a case has been deferred to a national jurisdiction, the ICC Prosecutor is entitled to request that state to submit periodic reports on ‘the progress of its investigations and any subsequent prosecutions’ (Art. 18(5) of the Statute). Accordingly, the assessment on complementarity is not a one-step issue and the ICC is meant to act continuously as a ‘controller’ as to whether a state is genuinely and effectively fulfilling its duties under the Statute.
48. A. Cassese, International Law (2005), 440.
49. ICJ Decision 20 December 1974 (Nuclear Tests case, Australia v. France), ICJ Reports, 1974, 268.
50. Holmes, The rules governing the procedural functioning of the principle of complementarity seem of further significance in this respect. note 34, at 677.
51. The travaux pré paratoires show that mere ‘partial’ collapse was deliberately excluded from the scope of inability (see Holmes, The rules governing the procedural functioning of the principle of complementarity seem of further significance in this respect. note 8, at 54-5). See also, on this issue, the Informal Expert Paper for the Office of the Prosecutor, The Principle of Complementarity in Practice, 15 (available at http//www.icccpi. int/library/organs/otp/complementarity.pdf, last visited 3 Aug. 2006).
52. As otherwise stated, ‘States should not underestimate themany difficulties involved in carrying out investigations and concluding a trial in situations in which (most of) the evidence is to be found in other States or when the suspect or accused is not on their territory. They should, therefore, carefully examine whether or not the Court might be in a better position to adjudicate, and refrain from acting themselves if this seems to be the case'” Cassese, Gaeta, and Jones, The rules governing the procedural functioning of the principle of complementarity seem of further significance in this respect. note 2, at 1906.
53. Among many, see the cases brought in 2003 in Belgium against former US President George Bush Sr and US Secretary of State Colin Powell (available at http//news.bbc.co.uk/1/hi/world/europe/3135934.stm, last visited 3 Aug. 2006); and in 2005 in Germany against the former US Defence Secretary Donald Rumsfeld (available at http//news.bbc.co.uk/1/hi/world/americas/4254191.stm, last visited 3 Aug. 2006).
54. See Art. 13 of the Statute.
55. S. H. Gifis, Law Dictionary (1996), 208.
56. US District Court for the Southern District of NewYork, Abdullahi v. Pfizer, Inc., 01 Civ. 8118 (WHP), 9 August 2005, 2005 U.S. Dist. LEXIS 16126, 5.
57. Institut de droit international, Seventeenth Commission, Resolution “Universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes”, 26 Aug. 2005, Rapporteur C. Tomuschat (available at http//www.idi-iil.org/idiE/resolutionsE/2005_kra_03_en.pdf, last visited 16 Aug. 2006). See C.Kress, “Universal Jurisdiction over International Crimes and the Institut de Droit International”, (2006) Journal of International Criminal Justice 561.
58. M. Politi, The complementarity regime of the ICC, International Criminal LawNetwork Annual Conference, 18 December 2003.
59. InstitutdedroitinternationalResolution'Universalcriminaljurisdictionwithregardtothecrimeofgenocide, crimes against humanity and war crimes’, 26 August 2005, Law Dictionary note 73, Art. 3(d).
60. Art. 17 provides that a case is admissible under the heading of ‘unwillingness’ whenever (i) ‘the proceedings were or are being undertaken or the national decision was made ‘for the purpose of shielding the person concerned from criminal responsibility'; (ii) there has been an ‘unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice'; or (iii) ‘the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice’.
61. Holmes, Art. 17 provides that a case is admissible under the heading of ‘unwillingness’ whenever (i) ‘the proceedings were or are being undertaken or the national decision was made ‘for the purpose of shielding the person concerned from criminal responsibility'; (ii) there has been an ‘unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice'; or (iii) ‘the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice’. note 34, at 668.
62. For example, this would be the case in the event of a conviction issued following summary proceedings preventing the accused from submitting exculpatory evidence, or in the event of a court obviously biased against the accused.
63. Benzing, For example, this would be the case in the event of a conviction issued following summary proceedings preventing the accused from submitting exculpatory evidence, or in the event of a court obviously biased against the accused. note 8, at 598.
64. See Art. 31(1) of the 1969 Vienna Convention on the Law of Treaties” ‘A treaty shall be interpreted in good faith in accordance with the ordinarymeaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’
65. As amended on 11 Feb. 2005.
66. See Security Council Resolution 1503 (2003) 28 August 2003-UN Doc. S/RES/1503 (2003); Security Council Resolution 1534 (2004) 26March 2004-UN Doc. S/RES/1534 (2004).
67. InstitutdedroitinternationalResolution'Universalcriminaljurisdictionwithregardtothecrimeofgenocide, crimes against humanity and war crimes’, 26 August 2005, For example, this would be the case in the event of a conviction issued following summary proceedings preventing the accused from submitting exculpatory evidence, or in the event of a court obviously biased against the accused. note 73, Art. 4.
68. As upheld by Judge Weeramantry in the dissenting opinion to the ICJ Case concerning East Timor-Portugal v. Australia, Judgment, 30 June 1995, 211 (available at http//www.icj-cij.org/icjwww/icases/ipa/ ipa_ijudgments/ipa_ijudgment_19950630.pdf, last visited 20 April 2006).
69. First and foremost, Art. 14 of the 1966 International Covenant on Civil and Political Rights.
70. Although not with specific reference to the Statute and the complementarity principle, this seems also the view of Goodwin-Gill, For example, this would be the case in the event of a conviction issued following summary proceedings preventing the accused from submitting exculpatory evidence, or in the event of a court obviously biased against the accused. note 42, at 220, according towhom the obligation to prosecute an international crime ‘would seem to entail the obligation also to conduct a preliminary enquiry into the facts, to co-operate, and to exchange information with other states or international organizations having a recognized interest in thematter or the offender, as well as obligations generally relating to process, impartiality and so forth’.
71. For the complementarity regime as ‘a benchmark for judicial effectiveness’ seeW.W. Burke-White, ‘Complementarity in Practice” the International Criminal Court as Part of a System ofMulti-level Global Governance in the Democratic Republic of Congo’, (2005) 18 LJIL 557, at 574. Along the same lines see also Kress, Although not with specific reference to the Statute and the complementarity principle, this seems also the view of Goodwin-Gill, For example, this would be the case in the event of a conviction issued following summary proceedings preventing the accused from submitting exculpatory evidence, or in the event of a court obviously biased against the accused. note 42, at 220, according towhom the obligation to prosecute an international crime ‘would seem to entail the obligation also to conduct a preliminary enquiry into the facts, to co-operate, and to exchange information with other states or international organizations having a recognized interest in thematter or the offender, as well as obligations generally relating to process, impartiality and so forth’. note 73, at 22, arguing that a state proceeding on the basis of universal jurisdiction (and therefore acting as a trustee of a fundamental value of the international community) ‘must adhere to the same human rights limitations in conducting its proceedings as an international criminal court, which has been created as an organ of the international community to preserve the fundamental value in question’.
72. Part 3 of the Statute, ‘General principles of criminal law'” nullum crimen sine lege (Art. 22), nulla poena sine lege (Art. 23), non-retroactivity ratione personae (Art. 24), individual criminal responsibility (Art. 25), exclusion of jurisdiction over persons under eighteen (Art. 26), irrelevance of official capacity (Art. 27), responsibility of commanders and other superiors (Art. 28), non-applicability of statute of limitations (Art. 29), mental element (Art. 30), grounds for excluding criminal responsibility (Art. 31), mistake of fact or mistake of law (Art. 32), superior orders and prescription of law (Art. 33).
73. In particular, the rights of persons during an investigation (Art. 55), the rights of the accused (Art. 67), and the rules governing the protection of the victims and witnesses and their participation in the proceedings (Art. 68). This seems the view underlying the remark by M. Delmas-Marty, ‘The ICC and the Interaction of International and National Legal Systems’, in Cassese, Gaeta, and Jones, Part 3 of the Statute, ‘General principles of criminal law'” nullum crimen sine lege (Art. 22), nulla poena sine lege note 2, 1915, at 1927, arguing that a process of ‘harmonization… will clearly be necessary when cases are tried by national courts in application of the principle of complementarity’.
74. The situations in the Democratic Republic of the Congo (available at http//www.icc-cpi.int/pressrelease_ details& id=19& l=fr.html, last visited 3 Aug. 2006), in Uganda (available at http//www.icc-cpi.int/ pressrelease_details& id=16& l=en.html, last visited 16 Aug. 2006), and in the Central African Republic (available at http//www.icc-cpi.int/pressrelease_details& id=87& l=en.html, last visited 3 Aug. 2006) all originated from a self-referral of the respective state; the situation in Darfur was referred by the Security Council by Resolution 1593 (2005) (available at http//www.un.org/News/Press/docs/2005/sc8351.doc.htm, last visited 3 Aug, 2006).
75. C. Kress, ‘“Self-Referrals” and “Waivers of Complementarity”-Some Considerations in Law and Policy’, (2004) Journal of International Criminal Justice 944.
76. M. H. Arsanjani andW. M. Reisman, ‘The Law-in-Action of the International Criminal Court’, (2005) 99 AJIL 385, at 388.
77. P. Gaeta, ‘Is the Practice of “Self-referrals” a Sound Start for the ICC?’, (2004) Journal of International Criminal Justice 949, at 950-1; Arsanjani and Reisman, Part 3 of the Statute, ‘General principles of criminal law'” nullum crimen sine lege (Art. 22), nulla poena sine lege note 94, at 392.
78. Kress, Part 3 of the Statute, ‘General principles of criminal law'” nullum crimen sine lege (Art. 22), nulla poena sine lege note 93, at 945” while holding that the practice of a state referring its own situation does not ‘give rise to legality concerns’, the author cautions against the risks entailed by such practice.
79. Pre-Trial Chamber I ‘Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58’, para. 40 (ICC-01/04-01/06-8-Corr 17-03-2006, unsealed pursuant to Decision ICC-01/04-01/06-37).
80. El Zeidy, Pre-Trial Chamber I ‘Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58’, para. note 15, at 912.
81. See, amongmany, B. S. Brown, ‘Primacy orComplementarity” Reconciling the Jurisdiction ofNational Courts and International Criminal Tribunals’, (1998) 23 Yale Journal of International Law 383, at 384-6; B. Swart and G. Sluiter, ‘The ICC and International Criminal Cooperation’, in H. A. M. von Hebel, J. G. Lammers, and J. Schukking (eds.), Reflections on the International Criminal Court” Essays in Honour of Adriaan Bos (1999), 91, at 125 (the situation of the ICC ‘is very different from that of the ad hoc Tribunals, which have primary jurisdiction'); Lattanzi, Pre-Trial Chamber I ‘Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58’, para. note 8, at 53; Cassese, Pre-Trial Chamber I ‘Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58’, para. note 8, 348; Kleffner and Kor, Pre-Trial Chamber I ‘Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58’, para. note 9, at v; F. Mé gret, ‘WhyWould StatesWant to Join the ICC? A Theoretical Exploration Based on the Legal Nature of Complementarity’, Pre-Trial Chamber I ‘Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58’, para., 1, at 23.
82. Holmes, Pre-Trial Chamber I ‘Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58’, para. note 34, at 668” ‘In the former Yugoslavia, the national courts in parts of the country and in the emerging successor States continued to function but effective prosecutions were not initiated… there were serious concerns that any proceedings initiated by these courtswould be attempts to shield individuals from ICTY's jurisdiction and from serious punishment for the crimes committed.’
83. Pre-Trial Chamber I ‘Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58’, para., at 668-9” ‘In Rwanda, the judicial system was decimated by the genocide and substantial international assistance was required before the country could begin to prosecute those responsible.’
84. A hint in this direction is to be found in Pre-Trial Chamber I ‘Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58’, para…” ‘Put generally, the Security Council was faced with situations where in the former Yugoslavia, there was an unwillingness to investigate and prosecute effectively those responsible for international crimes and in Rwanda there was an inability to do so.’ However, the author seems not to go so far as to convey the idea of the ‘primacy’ vested in the ad hoc tribunals as an ante litteram implementation of the complementarity regime enshrined in the Statute.
85. Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, 4 October 2000 (S/2000/915), para. 28.
86. B. Fassbender, ‘Comments on Chapters 1 and 2’, in Kleffner and Kor, A hint in this direction is to be found in Pre-Trial Chamber I ‘Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58’, para… note 9, 73, at 73-4, identifies a similarity between the notion of complementarity and that of subsidiarity, in that both ‘give priority to the lower level of a hierarchy in a system of public function'; he further argues that ‘in the process of a further expansion of powers of international organizations and institutions’, it [i.e., subsidiarity/complementarity] might ‘evolve into a rule of the constitutional law of the international community, governing the general distribution of competences between the organs of that community, on the one hand, and the individual Member States of the international community on the other, and complementing the principle of sovereign equality’.
87. Delmas-Marty, ‘Comments on Chapters 1 and 2’ note 91, at 1916.
88. G. Sluiter, ‘Legal Assistance to Internationalized Criminal Courts and Tribunals’, in C. P. R. Romano, A. Nollkaemper, and J. K. Kleffner (eds.), Internationalized Criminal Courts and Tribunals-Sierra Leone, East Timor, Kosovo, and Cambodia (2004), 379, at 383” ‘international crimes can be said to affect the interest of every member of the international community'; hence states’ preparedness ‘to engage in a vertical cooperation relationship’. The author also argues that ‘legal assistance express[es] international solidarity’ (‘Comments on Chapters 1 and 2’., at 384).
89. For the few exceptions see, in particular, the implementing laws enacted in Belgium,Germany,New Zealand, Sweden, and the Netherlands.
90. See above, section 6.4.
91. For a broader discussion on issues relating to reverse co-operation, including an assessment of the risk of a malicious recourse to reverse co-operation by states, see F. Gioia, ‘“ReverseCooperation” and theArchitecture of the Rome Statute” A Vital Part of the Relationship Between States and the ICC?’, Proceedings of the Colloquium ‘Corte Penale Internazionale e cooperazione internazionale alla luce dello Statuto di Roma’, Lecce, Italy, 21-2 October 2005 (forthcoming).
92. In the perspective of a jurisdictional power shared in furtherance of acommonobjective, it seems reasonable to imagine that the preferred field of application of reverse co-operation may be the situation whereby a national jurisdiction would be investigating and prosecuting conducts related to those being investigated and prosecuted by the Court at themoment of the request.
93. A. Nollkaemper, ‘Some Observations on the Consequences of the Termination of Treaties and the Reach of Article 70 of the Vienna Convention on the Law of Treaties’, in I. F. Dekker and H. H. G. Post (eds.), On the Foundations and Sources of International Law (2003), 187.
94. ‘The termination of a treaty does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.’
95. As mentioned above, it actually did so on 31March 2005, by referring the situation in the Sudanese region of Darfur (Resolution 1593 (2005), available at http//www.un.org/News/Press/docs/2005/sc8351.doc.htm, last visited 3 Aug. 2006).
96. L. Condorelli and S. Villalpando, ‘Referral and Deferral by the Security Council’, in Cassese, Gaeta, and Jones, ‘The termination of a treaty does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.’ note 2, 627, at 644.
97. ‘Referral and Deferral by the Security Council’.
98. For a recent view framing this interaction in the context of the concept of ‘multi-level global governance’, see Burke-White, ‘Referral and Deferral by the Security Council’. note 89.
99. Delmas-Marty, For a recent view framing this interaction in the context of the concept of ‘multi-level global governance’ note 91, at 1915.
100. Tadic’, For a recent view framing this interaction in the context of the concept of ‘multi-level global governance’ note 23, para. 58.
101. Kress, For a recent view framing this interaction in the context of the concept of ‘multi-level global governance’ note 73, at 7.
102. Cassese, Gaeta, and Jones, For a recent view framing this interaction in the context of the concept of ‘multi-level global governance’ note 2, 1901.
103. Steinhardt, For a recent view framing this interaction in the context of the concept of ‘multi-level global governance’ note 29, at 240.
104. Tadic’, For a recent view framing this interaction in the context of the concept of ‘multi-level global governance’ note 23, para. 58. The same concept echoes in one of the decisions of the UK House of Lords in the Pinochet case, according to which conducts amounting to international crimes (in particular, torture and hostage-taking) are not acceptable on the part of anyone including heads of state and any contrary conclusion ‘would make a mockery of international law’ (Lord Nicholls of Birkenhead, [1998] 3WLR. 1456 at 1500C-F.).
105. Mé gret, For a recent view framing this interaction in the context of the concept of ‘multi-level global governance’ note 99, at 4.
106. See Holmes, For a recent view framing this interaction in the context of the concept of ‘multi-level global governance’ note 8, at 74” the ‘fundamental strength of the complementarity regime… is that, ultimately, the interpretation and application of the provisions are left to the Court itself’.