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11 - The quest for constructive complementarity

from PART III - Analytical dimensions of complementarity

Published online by Cambridge University Press:  05 November 2014

By
Michael A. Newton
Edited by
Carsten Stahn  and
Mohamed M. El Zeidy
Carsten Stahn
Affiliation:
Universiteit Leiden
Mohamed M. El Zeidy
Affiliation:
International Criminal Court
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Summary

In its early years, the model of a healthy and cooperative synergy between the International Criminal Court (ICC) and domestic states is in danger of being replaced by a model of competition. At present, the Rome Statute obligates States Parties to cooperate with the Court in a variety of ways throughout the investigation and prosecution of persons. Those obligations are not reciprocated by countervailing requirements for the Prosecutor or for the Registry to consult with, much less cooperate with, States Parties. The practice of complementarity may well be the fulcrum supporting the Court's long-term legitimacy; and this principle is all the more important because it is designed to provide intellectual leverage to move non-states parties towards treaty accession. The plain text of Article 1 compels the conclusion that the International Criminal Court was intended to supplement the foundation of domestic punishment for violations of international norms rather than supplant domestic prosecutions. The Statute curtails sovereign authority by displacing domestic trials only in exceptional circumstances, and includes detailed procedural guidance designed to balance sovereign enforcement against improper extensions of ICC prosecutorial power. The Court and States Parties should be joined in a partnership based on mutual respect and a renewed resolve to end impunity. Such a healthy synergy is by no means assured, and could be undermined by any of three emerging trends discussed herein: (i) the extension of judicial constructs beyond those envisioned by states; (ii) an aggressive erosion of complementarity in practice; or (iii) excessive politicization of charging decisions. If the Court habitually overrides the discretion of domestic officials and displaces their authority based on its own preferences or the expediency of political considerations, the entire premise of the complementarity principle will have been eviscerated. States Parties would be wise to address these disquieting signals. This chapter concludes by making a series of specific textual recommendations that in the aggregate would go far towards preventing a crisis of confidence and cooperation that could cripple the Court of the future.

Type
Chapter
Information
The International Criminal Court and Complementarity
From Theory to Practice
 , pp. 304 - 340
Publisher: Cambridge University Press
Print publication year: 2011

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References

Rome Statute of the International Criminal Court, 2187 UNTS 90, entered into force 1 July 2002, Articles 12–19. The extension of potentially unchecked international prosecutorial and judicial power over sovereign concerns is one of the primary reasons the United States was originally unwilling to go forward with the Rome Statute ‘in its present form’
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On 31 December 2000, which was the last day permitted by the treaty, Ambassador Scheffer signed the Rome Statute at the direction of President Clinton. See Rome Statute, Article 125(1) (stipulating that states may accede to the Statute at a later time, but that signature was permissible only until 31 December 2000)
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D. J. Scheffer, Ambassador-at-Large for War Crimes Issues and Head of the US Delegation for the UN Diplomatic Conference on the Establishment of a Permanent International Criminal Court, US Department of State, Testimony before the Subcommittee on International Operations of the Senate Foreign Relations Committee, Washington, DC, 23 July 1998, S. Hrg. 105–724, at 13 (Ambassador Scheffer referred to a regime of ‘automatic jurisdiction over the crime of genocide’ in describing the inherent regime of the ILC draft). See also Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277, Article VI (providing that ‘persons charged with genocide shall be tried by a competent tribunal of the State in which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’). In the 1948 debates over the Genocide Convention, the United States actually made a proposal that sounded remarkably close to the modern formulation of complementarity in the ICC context. The proposal would have added an additional paragraph to Article VII of the Genocide Convention to read as follows: ‘Assumption of jurisdiction by the international tribunal shall be subject to a finding that the State in which the crime was committed has failed to take adequate measures to punish the crime’. Report and Draft Convention Prepared by the Ad Hoc Committee on Genocide, UN Doc. E/794 (1948), reprinted in Historical Survey of the Question of International Criminal Jurisdiction, Memorandum Submitted by the Secretary-General 142, UN Doc. A/CN.4/7Rev.1 (1949). The proposal was rejected by a vote of five votes to one with one abstention (the USSR) on the basis that such a paragraph would prejudice the question of the court's jurisdiction. Ibid
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Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808, UN SCOR, 48th sess., UN Doc. S/2507 (1993) para. 66 (describing the overlap of domestic prosecutorial authority with the concurrent jurisdiction and presumption of primacy under the International Criminal Tribunal for the former Yugoslavia)
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See Ninth Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCRes. 1593 (2005), 5 June 2009, para. 42, available at . The Abu Garda case is significant in that it represents the first time in ICC practice that a perpetrator has voluntarily surrendered to the Court based on a summons to appear

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