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Analysis of the implications of the principle of complementary jurisdiction in the Statute of

the International Criminal Court with special reference to the role of universal jurisdiction

in the international justice system.

Author: Farid Mohammed Rashid

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The International Criminal Court (ICC) is one of the main victories in the history of

international justice. On 17th July 1998, after long negotiations, 120 states convened a

conference in Rome by which a permanent international court has been established and the

Court’s Statute has been adopted.1 The ICC has jurisdiction over “...the most heinous crimes

of concern to the international community...”,2 nonetheless, there are some limitations that are

related to its jurisdiction in terms of ratione temporis and ratione materiae. One significant

aspect of this Statute is that the jurisdiction of the ICC is complemetarity which is asserted in

the first Article of this Statute. The main aim of this principle is to make cooperation between

the Court and states on the national level to prosecute all offenders of international crimes3,

which are listed in Articles 6, 7, and 8 of the Statute. Further, this principle is intended to be a

cornerstone on which the national jurisdiction given the priority over such crimes.

In this paper I will try to outline the main features of the complementarity principle in

accordance to Paragraph 10 of the preamble of the Statute and Article 1, and the importance of

the universal jurisdiction as it is asserted in the ICC Statute. Additionally, I will explain the

importance of the principle of complementarity in achieving the ultimate goal of the universal

jurisdiction principle. Then, it will explain the meaning of the universal jurisdiction and the

difference between both principles as given in the Preamble. Before showing the main flaws

of the universal jurisdiction principle with an example, I will analyze the ways by which this

principle is exercised. The paper will then show the significant ways by which the Court can

acquire its jurisdiction over the state parties and those are not parties. The ICC jurisdiction over

the third states without their consent will be also addressed in this essay. Furthermore, I will

focus on Article 17 as it represents the core subject of the complementarity principle and the

most important issues related to this Article such as shielding, delay and partiality and try to

give some examples to those instances like the case of paramilitaries in Colombia, the case of

Ahmad Harun the former member of the Popular Defence Forces in Sudan and lastly, Kosovo

respectively. Consequently, I will examine how the complementairty principle could be

respected by the ICC by analyzing Article 18. Finally, all these issues will be analyzed by

showing others opinions of some scholars.

1 Michael P. Scharf, ‘Results of the Rome Conference for an International Criminal Court’, American Journal of International Law,< http://www.asil.org/insigh23.cfm >, 1998, (accessed 4 December 2006). 2 See Paragraph 4 of the Rome Statue. 3 Ibid

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The main idea of the complementarity as a principle is that states will have primary role in

proceedings with crimes within their jurisdiction and therefore the state sovereignty will be

maintained. The idea then is that the Court will complement the jurisdiction of the states.

Article 1 of the Statute asserts that its jurisdiction should be complementary to national criminal

jurisdictions, and this principle also has been asserted in Paragraph 10. We should notice that

states have priority jurisdiction even over the most heinous international crimes. Thus, the

Court cannot exercise the jurisdiction unless the national systems have failed to do so as we

will see this in details later.

It is worth examining, here, the relationship between complementarity principle and universal

jurisdiction principle as they are both controversial issues. Paragraph 6 clearly refers to, and

emphasizes the principle of universal jurisdiction. In general, universal criminal jurisdiction is

often understood as the exercising of jurisdiction over a crime without regard to any traditional

link such as territoriality, nationality, passive personality or even if the vital interests of a state

concerned is not faced a direct threat.4 In fact, the application of the principle of universal

jurisdiction is based on the idea of the nature of the crime not on other traditional link where

these crimes are severe enough that all states have common interests to repress them. The ICC

then does not have a universal jurisdiction; rather it has an international jurisdiction. The latter

one is exercised unilaterally by a state, while the other by an international Court to which states

accept to delegate the power to exercise the jurisdiction,5 so, we should distinguish between

both of them. However, Paragraph 6 and 10 are still interrelated and as we will see later in

more details that one possible approach to implement the aims of the universal jurisdiction is

complemetarity. According to Reydams6 promoting the responsibility of those who violate the

human rights and bringing all perpetrators of international crimes are the core aims of the

universal jurisdiction.

Basically, there are two different ways to implement the universality doctrine. It could either

be applied in narrow way or in extensive way.7 With regard to the narrow way, it could be

implemented only when an accused of international crime within the territory of the state

4 Stephen Macedo, Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law (Philadelphia: University of Pennsylvania Press, 2006). 5 Cedric Ryngaert, Universal Jurisdiction in an ICC Era: A Role to Play for EU Member States with the Support of the European Union,1 European Journal of Crimes, Criminal Law and Criminal Justice, 46(2006), 46-80. 6 Lus Reydams, Universal jurisdiction: international and Municipal Legal Perspectives, (Oxford: Oxford University Press, 2003). 7 Antonio Cassese, International Criminal Law, (Oxford: Oxford University Press, 2003).

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concerned. In fact, there are some flaws of this approach that are worthy of mention. The most

manifest one is that when the suspect avoids presenting within the territory of the state

concerned where in this case the judge will not be able to do anything. However, this approach

maintains the principle of international due process where the accused will be presented before

the court concerned. In fact, most important international sources have adopted this approach,

such as Customary International law and Geneva Conventions8, and asserted that the suspect

must be within the territory of the state concerned. The other approach to universal jurisdiction

is that courts can exercise jurisdiction even when the suspect is not presented in the territory of

the state concerned. Again, the same flaw of the last approach could be attributed to this

manner. In addition, trying an accused in absentia might violate the International Covenant on

Civil and Political Rights which provides the accused the right to be tried in his presence. It

also would undermine the work of judges because the state of nationality and the accused would

not co-operate with judges in searching for information and collecting evidence.9 In the actual

practice, few states have adopted the broader meaning of the universal jurisdiction, such as

Spain and Belgium, by amending their penal law.10

In addition, in some situations, all attempts to give strong influence to this approach remained

unimplemented. In other words, this principle usually failed to bring the suspect to justice as

most cases which are based on this principle did not succeed to punish the persons accused of

international crimes. For example, General Pinochet, Ariel Sharon and Hissene Habre, they all

were not punished for their crimes.11 This ineffectiveness of this system could be attributed to

different reasons such as political, cultural and other circumstances of the state. As I said

earlier, the political motivated Court plays a main role in such occasions, thus, in some

situations, we might see that the principle of universal jurisdiction are not effective. A relevant

example could be given in this regard is the case of Guenguen et al. v Habre whose case finally

dismissed by the Senegalese Courts due to political reasons exercised by Senegalese

Authorities.12

8 See, the four Geneva Conventions of 1949 and 1977 Additional Protocol I and the Convention of Torture Article 7 and the crime of Piracy within the Customary International Law and article 8 of the 1979 Convention against the taking of hostages. 9 Supra n. 7. 10 Supra n. 6. 11 See Supra n. 6. 12 Senegal Actions on Ex-Chad Dictator Deplored, ‘Human Right Watch’, http://www.hrw.org/en/news/2000/07/04/senegal-actions-ex-chad-dictator-deplored, 2004, (accessed 2 February 2004).

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The main question one might ask is how can we make the principle of universal jurisdiction

more effective and, therefore, preventing all serious international crimes from going

unpunished? In order to answer this question, we should firstly know why states usually refrain

from implementing this doctrine and why some of them only refer to this principle theoretically

not practically? The principle of universal jurisdiction is found in three main sources: treaty-

based universal jurisdiction (international conventions), general customary international law

and national law.13 As far as the international conventions are concerned, the Geneva

Conventions impose clear obligations on states to bring any accused who has committed

international crimes.14 In fact, this source does not provide any clear guidance about

prosecuting precisely, and therefore, guarantee any fair and effective trial, nor any enforcing

mechanism. As for the second source, customary international law could be considered as

origin for the recognition of universal jurisdiction. But it also does not give manifest guidance

and details for implementing this principle.15 The latest source is national law. In this case a

state might exercise its universal jurisdiction when there is no direct international obligation

imposed on it to do so by, such as, international agreement, because it accepts to commit to the

international community. But in reality, there are very few cases make states adopt this

approach.

However, I am not going to argue in this regard that all these sources mentioned above are not

sufficient approaches to promote the idea of implementing the universal jurisdiction properly,

I would rather say, as Reydams illustrates, that there is no global convention at present with

regard to universal criminal jurisdiction, and even in the near future it is very difficult to see

one emerging.16 The reason of the late point might be the will of states to have some freedom

with regard to applying the universal jurisdiction. In other word, applying universal jurisdiction

will remain depending on the political, cultural and other circumstances of states. In short, the

problem with regard to applying this principle is that there is no specific basis by which states

could properly implement this principle. Therefore, political or biased motivated courts might

abuse this right as most cases related to this principle are usually connected to military and

political cases.

13 Supra n. 7. 14 See, Geneva Convention I, Article 49, GC II, Article 50, and GC IV, Article 146. 15 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Cambridge University Press, Vol. 1, Rules, (2005), p 604. 16 Supra n. 6.

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In fact, what we need is some accurate legal norms to articulate the nature of this principle and

determine its conditions and obligations. So, the big and debatable questions are what is the

solution? What kind of an instrument by which we can, at least, make this principle more

reliable and efficient? The provisions of the ICC Statute could be one of the best mechanisms

to promote universal jurisdiction principle on the national level. Thus, as we will see later,

complementarity principle provides complex instructions for states to prosecute the most

serious crimes which, in turn, might enhance the occasions when the universal jurisdiction is

exercised. In other words, due to the complex criteria of the principle of complemetarity which

are provided in the Rome Statute, it seems that the application of this principle will be applied

apart from any political or biased way.

In this section of my paper, I will clarify the complementarity principle through analyzing all

Articles that are related to it with a particular focus on Article 17. Following Articles 12 and

13 of the Statute, the Court has jurisdiction over both states parties and in some situation those

not party to the ICC. However, the jurisdiction of the Court is mainly based on the principle of

territoriality and the principle of nationality.17 Therefore, all crimes that are listed in Articles

6, 7 and 8 that could be committed within territory or by a national of a state party fall under

the ICC jurisdiction. With regard to non-parties, the ICC could even exercise the jurisdiction

in three instances. Firstly, when there is a referral by the UN Security Council according to

Article 13 (b). Secondly, when there is a crime committed within a state party’s territory in

accordance to Article 12. Lastly, it can also exercise the jurisdiction where a non-party has

assented to the ICC jurisdiction to a particular crime and that according to Article 12.

As a matter of a legal fact, and concerning the ICC jurisdiction over non-parties, the most

significant features of the way by which the ICC acquires its jurisdiction are that it could be

exercised over the third state to the ICC without even its consent in the two first cases

(mentioned above). As far as the second case is concerned, the main argument arises here is

that the ICC jurisdiction over non-parties’ nationals might violate international law norms,18 in

particular the principle that a treaty cannot impose any obligation on a third state without its

acceptance.19 Thus, the argument arises here is that the delegation of the criminal jurisdiction

from state parties to the International Criminal Court over non-parties’ nationals would be

17 See Article 12 (2) (a-b) of the Rome Statute. 18 Dapo Akande, The Jurisdiction of International Criminal Court Over Nationals of Non-Parties: Legal Basis and Limits, Journal of International Criminal Justice, Vol. 1, No. 3, (2003), 618-650. 19 See Article 34, Vienna Convention on the Law of Treaties (1969).

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illegal without the consent of state concerned. Conversely, to some extent this argument is

unpersuasive because of the well-established principle of territoriality. The power of the ICC

jurisdiction over crimes committed within the parties’ territory comes from the same power of

the state parties since the ICC is a treaty-based Court.20 As a result, so long as the state parties

have jurisdiction over non-parties’ nationals regardless their consent, according to the

territoriality principle, the same would be true with regard to the delegation principle21 and,

therefore, the Court could exercise the jurisdiction without the said consent. Thus, the ICC

jurisdiction in this case is not in violation the said norms.

Within this general analysis and according to Article 17, the principle of complemetarity seems

to be a suitable legal instrument to promote the idea of universal jurisdiction and make it more

efficient and rational. In this section I will try to analyze Article 17, all relevant Articles of the

Rome Statute and all issues that are related to it, such as shielding, delay, and partiality. The

comlementarity principle is based on respecting the sovereign state principle.22 Consequently,

this principle requires both systems national and international criminal justice to co-operate

together to end the most heinous international crimes.23 Thus, if the first system fails to do so,

the second one will step in and ensure that the offenders will be punished.24 But there are some

conditions by which all states must make sure that they apply these conditions before exercising

their jurisdictions.

Article 17 of the Statute provides a complex mechanism to allocate accountability for a

prosecution among states and the ICC. Under Article 17, the cases will be only admissible

before the court so long as the national courts are genuinely unwillingness and unable to carry

out investigations or prosecutions.25 Thus, all crimes within the jurisdiction of the ICC, namely

genocide, crimes against humanity and war crimes26, shall be primarily the responsibility of

the states. Obviously, here we have two different elements to decide the inadmissibility of the

cases: ‘unwillingness’ and ‘inability’ that need to be assessed.

20 Supra n. 18. 21 Ibid 22 Supra n. 5. 23 See the paragraph 4 of the Rome Statute. 24Mohamed M. El Zeidy, The principle of complementarity: A new machinery to implement international criminal law, Michigan Journal of International Law, Vol. 23, (2002), 869-899. 25 See also preamble of the Rome Statute Para. 10, Article 20 (3) of the Statute. 26 See article 5 of the Rome Statute.

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Pursuant to the latter point the role of the ICC is like supervisory function over the competence

of the national criminal jurisdictions, this supervisory approach operates like, as Kleffner said,

“a carrot-and-stick mechanism”27. The idea here is that the goal of this element, supervisory,

is twofold: firstly, it promotes the principle of universal jurisdiction as provided in Paragraph

6, which is the most heinous international crimes should not go unpunished, on the national

ground. Thus, the state’s failing to implement the criteria of Article 17 will make it under the

trigger of the Court jurisdiction. Secondly, the principle of states’ sovereignty will be respected

and the ICC will not take their role so much as the state concerned applies these criteria

properly.

Before analyzing the principles connected to “unwillingness” and “inability”, there is one

relevant question. Are states under obligation to implement the substantive law of the ICC

Statute?28 Nothing in the Statute refers explicitly to such obligation. But, before adopting the

Rome Statute, most crimes which were included in it have been previously recognised under

the international law, customary international law and international conventions.29 For

example, war crimes are prohibited under the Geneva Conventions.30 Therefore, according to

these norms, there is an obligation to implement substantive relevant law by the states, whether

they are parties or not to the ICC.31 As for the other types of crimes, states party are still under

this obligation according to the implications of the principle of complementarity as we will see

them later. Furthermore, the prerequisite for the use of the principle of comlementarity assumes

that all crimes embodied in the Statute are also crimes within the national legislation.32

Article 17 mandates the Court with the main responsibility to determine that the case

inadmissible in four instances. Article 17(1) (a) provides that in order to consider the

inadmissible issue, the state should conduct the investigation or prosecution genuinely. But the

element of “genuine” itself is rather more neutral than efficient or effective.33 The sub-

paragraph of Article 17 (2) (3) provide more guides to elucidate the sub-paragraph 1 (a). Article

27 Jann K. Kleffner, The Impact of Complementarity on National Implementation of Substantive International Criminal Law, Journal of International Criminal Justice, Vol.1 No. 1, (2003) P. 87. 28 Ibid pp.86-113. 29 Ibid 30 See the Four 1949 of Geneva Conventions, Articles 49-50-146, the First Additional Protocol of Geneva Convention, Articles 85-87. 31 Supra n.26, pp. 86-113. 32 Ibid 33 John T. Holmes, Complementarity: National courts versus the ICC, in Antonio Cassese; Paola Gaeta; John R. W. D. Jones (eds) The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002), 667-686.

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17(2) provides three criteria for determining whether unwillingness exists or not: the first one

is to shield a person from criminal accountability. Here, the Court should verify the intent of a

state’s procedures and decisions. Secondly, unjustified delay in the proceedings in a manner

that incompatible with intent to bring a suspect to justice. Here again, the ICC should define

what unjustified delay means. Lastly, the proceedings are not impartial or independent.

The outset of Sub-Paragraph 17(2) shows that the unwillingness element shall be dissected in

accordance to due process’ principle recognised by international law. This term means that the

national courts should make sure that the standard fair trial rights are guaranteed to a suspect

in the procedure matters. This should include the right of accused to be informed about all

indictments made against her or him and the right to defend him/herself and so on.34 In addition,

all these procedures should be carried out independently and impartially in accordance to

Article 17(c). The sub-paragraph (a), indeed, has a very crucial guide to prove the

unwillingness of a state. In fact, this clause is mainly related to three main cases by which a

state can lift the criminal responsibility of the perpetrators: impunities, amnesties and the idea

of reconciliation35. These alternative forms of justice are rather difficult to deal with.

A relevant example could be addressed here with regard to impunity is the human rights

violations which are taking place in Colombia over more 40 years. I will examine crimes

against humanity as a specific example and see how Article 17 (2) (a) could be applied. This

country has witnessed one of the most atrocities acts where most violence actions including

assassinations, massacres, disappearances and more other crimes committed in Colombia

mainly by Paramilitary forces and lesser by Guerrillas.36 All these crimes committed, in

particular killing, systematically targeting civilians and, consequently, they might be

considered as crimes against humanity according to Navi Pillay, the Commissioner for Human

Rights at the UN.37

34 J.S. Abrams and P. Hayner, Documenting, Acknowledging and Publicising the Truth, in M.C. Bassiouni (ed.) Post-Conflict Justice (Ardsley, NY: Transnational, 2002), 283-294. 35 Carsten Stahan, Articles, Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court, Journal of International Criminal Justice, Vol. 3, Issue 3, (2003), 695-720. 36 Sarah R. Sandford-Smith, a Toothless Tiger: President Uribe’s Proposed Amnesty Bill, Hastings International and Comparative Law Review, Vol. 28, (2004), 167-185. 37 U.N. Says Colombian Military Executing Civilians, CNN. Com/World,

<http://edition.cnn.com/2008/WORLD/americas/11/01/colombia.UN/>, 2008, (Accessed, November 1, 2008).

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However, after long negotiations, Uribe’s administration decided to move to transitional justice

by demobilizing efforts and granting the Paramilitary leaders amnesty law.38 The main aim of

passing Justice and Peace Law (JPL) was to create a balance between a peace and justice but

in reality it did not. The kinds of punishments, sentences and procedures do not meet the basic

standard criteria of a fair trial and prosecution. In other word, it were drafted in bad faith.39

According to this information and other facts, and as Colombia is a party to the ICC since 2002,

it seems likely that Colombia is unwilling to prosecute. The whole operation of transitional

justice is a rather a political motivated approach to shield the top leaders of the Paramilitary.

There is much evidence by which we can apply Article 17 (2) (a). For example, the PJL has

been established by the Uribe’s administration under a remarkable effect by the Paramilitaries

who have some power over the Colombian Congress.

Within this brief analysis and according to the main aim of the complementarity and the very

close relation between Paramilitaries and the Government, the ICC would seem the proper

approach for this case. Moreover, the allegations that the prosecution of these perpetrators

would undermine the peace process in Colombia, seems very likely to shield them. Thus, “the

fact that the shielding is considered a necessary step in the pursuit of a higher goal does not

render Article 17 (2) (a) inapplicable”.40 This suggestion might be the best solution to put an

end to long period of atrocities that are still taking place in Colombia. Thus, I would disagree

with Sandford-Smith who suggested that the ICC is not a sufficient alternative to address the

problems in Colombia. For this purposes she provided number of reasons. For example, most

culprits will not be brought to justice as most of them were very far from presenting even before

the national Courts. In addition, the limited scope of the ICC jurisdiction where it can exercise

its jurisdiction only after 2002, while there were many crimes committed before that date will

not reach the ICC jurisdiction and instead she preferred another solution which is the Truth

Commission.41 I would say that if these obstacles are true for the ICC prosecution, it would be

the same for the Truth Commission and that because of number of reasons such as the

remarkable deficiencies in judicial and administration bodies that are remarkably influenced

by the paramilitaries. In addition, the poor work conditions for any mechanism in Colombia,

the lack of security and many other obstacles. For all these considerations, the ICC alternative

38 Supra n. 36. 39 Jennifer S. Easterday, Deciding the Fate of Complementarity: a Colombian Case Study, Arizona Journal of International and Comparative Law, Vol. 26, (2009), 49-111. 40 Jann K Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford: Oxford University Press, 2008), P 137. 41 Supra n. 36.

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can avoid most of these problems as it is neutral body and has a good experience to deal with

such case.

Another example would be the Darfur Case. According to this general analysis and regardless

of whether the issue of complementarity principle could be applied to Security Council referrals

or not, which will be examined later. Moreover, due to the lack of evidence, Sudanese

Authorities released the Minister of state Ahmed Harun, who had charged for committing for

some international crimes such as crimes against humanity.42 Further, they said that Harun as

a former member of the Popular Defence Forces had an immunity from prosecution, therefore,

this immunity will not be lifted, while according to Sudanese law it could be lifted by the

President. But in real practice, this lifting evidently did not seem that will have been used since

the Sudanese President himself said that Harun will not ever subject again to any further

investigation.43 According to this information, it is clear that the main aim of Sudanese

Authorities’ proceedings was to protect Harun and shield him from the criminal accountability.

As a result, it is highly likely that Article 17(2) (a) might be applied to this case.

Sometimes, some states might depend in their sentences, which might aim to shield an accused,

on the nature of their cultures or traditions. Thus, Kleffner argues that states should be granted

some margin of appreciation in determining whether the sentence is adequate or not.44

However, the ICC should be very careful when it determines whether the case inadmissible

according to the latter point since any (international) crime that falls under its jurisdiction has

the same criteria regardless the culture and tradition of any state in the world.

The sub-paragraph (2) (b) provides another criterion to determine unwillingness which is

“Unjustified Delay”. This criterion also depends on the intent of a state that might create some

justifications to protect the accused from criminal responsibility. Thus, when the proceedings

take longer than normal proceedings, here we can say that Article 17(2) (b) is fulfilled.

Moreover, this sub-paragraph gives an extra guide to prove the existence of unjustified delay

which is that this delay needs to be incompatible with the intent to bring the suspect concerned

to justice. This criterion seems quite sensitive to be proven by the Court; therefore, each case

should be assessed separately when the ICC investigates the existence of this criterion as each

42 ICC-02/05-01/07 Case The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Al Abd-Al- Rahman (Ali Kushayb). 43 Jakob Pichon, Th e Principle of Complementarity in the Cases of the Sudanese Nationals Ahmad Harun and Ali Kushayb before the International Criminal Court, International Criminal Law review, 8(1/2), (2008), 185-228. 44 Supra n. 40.

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case usually based on different considerations. One example could be given in this case would

be a situation in which a state does not prevent an avoidable delay. Such inaction by the state

could obviously lead to unjustified delay.45 In other words, when the proceedings take longer

than other similar one by, for example, postponing the trial several times without clear

justification this could be assessed as unjustified delay.

The third criterion is the independent and impartial proceedings. This condition follows from

the basic standards and proceedings of human rights. Although the two principles are

interrelated, yet there are some distinctions between them.46 As far as independence is

concerned, any intervene in judiciary issues like appointing its members or any effect on the

judgements by the executive represent a clear lack of independence.

A relevant example could be assessed here is the trafficking as a crime against humanity, which

comes within the jurisdiction of the ICC according to Article 7 (1) (c), which was committed

in Kosovo. Some local officers and those of the North Atlantic Treaty Organisation (NATO)

were the main offenders of these crimes.47 The main feature of this issue is that the members

of the domestic courts for trafficking were appointed by the UN where most of them were

international judges and prosecutors.48 Although the Kosovar courts seemed able to prosecute

the offenders without any doubt there were some doubts about its willingness to prosecute them

as the most members of these courts appointed by the UN, and as the most culprits were the

international officers who all worked under the UN’s auspices. Thus, can the ICC apply Article

17 (1) (c) in this case? Arguably, if the trafficking of women meets the criteria of definition of

crimes against humanity as it is provided in Article 7(2) (c), it seems that this case would

possibly be admissible before the Court due to the lack of independence in the sense of the

meaning of independence as I explained above.

With regard to impartiality, it could be detected when a judge acts in a way that supports the

interest of a one party at the expense of another party. However, the Court should bear in mind

when applying these principles the rest of this Article that the proceedings carried out in a

45 Supra n. 43. 46 Supra n. 40. 47 Julie Hyland, Explosive growth internationally in trafficking of women and children for sex trade‘, World Socialist Web Site,< http://www.wsws.org/articles/2000/jun2000/traf-j08.shtml>, 2000, (accessed 8 June 2000). 48 Hansjorg Strohmeyer, Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor, Vol. 95, American Journal of International Law, (2002), 46-63.

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manner that is incompatible with the intent to bring an accused to justice. Thus, we have got

here two criteria which must be met in order to apply this Article.49

In order to enforce the complementarity principle, Article 18 obliges the Court to respect this

principle and therefore respects the right of states to exercise its jurisdiction if they would so

within the criteria of Article 17. The most considerable features of this Article is that it does

not explicitly determine whether states have the right to use the complementarity principle

when the Security Council refers a case to the Court according to Article 13 (b). 50 Some people

see that the complementarity principle could be applied in this situation in accordance to

Articles 19(2) (b) and 53(2) (b) as the prosecutor can assess a case according to the criteria of

Article 17 which also contains the UN Security Council referrals.51

Conversely, in reading the text of Article 18, it seems that complementairty principle might not

be applied in this case. The reason of this idea could be found on the ground of the language

which is used in it, as we will see later that the same reason could be adopted concerning Article

20. Thus, so long as the drafters clearly and explicitly refer to just two cases as provided in

Article 13 (a) (c), it seems that they wanted to exclude the third case(Security Council

referrals). What supports this view are Articles 25 and 103 of the UN Charter. Both of them

assert that all Resolutions that issued by the Security Council must applied and carried out by

all members. Consequently, so long as the article 103 could be applied in this case, because of

the conflict between both obligations and as all Resolutions must be carried out by the

members. For all these points, the right of states to benefit from the principle of

complementarity is nullified.52

One of the most important principles resulted from the principle of comlementarity, reflected

in Article 17, is ne bis in idem principle which is laid down in Article 20. The main idea of

Article 20, in general, is that a person should not be tried for the same conduct or crime twice.

However, it seems that Article 20 is one of the most debatable Articles among other Articles.

In fact, there are many issues related to this Article, so I will try to discuss only one relevant

issue. The most significant feature of this Article is that the drafters used the term “conduct” in

Paragraph 1, when the accused is tried by the ICC, and Paragraph 3, when the accused is tried

49 Supra n. 40. 50 See Article 18 (2) of the Rome Statute. 51 Supra n. 43. 52 Michael A. Newton , Comparative Complementarity: Domestic Jurisdiction Consistent With the Rome Statute of the International Criminal Court, Militry Law Review, Vol. 167, (2001), 20-73.

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by other court. While, remarkably, they used the term of “crime” in Paragraph 2. That means

that the ICC seems to select the broader meaning of this principle.53 An example to illustrate

what the broader interpretation means would be the following: if an accused tried by the Court

or another court for murder as a crime of genocide in a particular incident, the ICC cannot

consequently try this accused for war crimes for the same incident. What supports this

argument, as most commentators agree, is the language which is used by the drafters, who

should presumably know the difference between the both terms: ‘conduct’ and ‘crime’, when

they distinguished between them as shown above.

As has been discussed, by the inclusion of complementarity principle in the ICC Statute, the

ICC Statute can be positive in promoting, if not establishing, an operative international criminal

justice system through combining the actions of state with the action of the ICC. Additionally,

the fact that the ICC could exercise its jurisdiction over non-parties’ nationals could also

promote the said system since many countries have changed their legalisation to ensure that

they can prosecute the international crimes. Thus, in the near future, we might see that one of

the main impact of complementarity could be the unifying the international criminal justice

system since, for example, the ICC provides a clear and unified definitions for some

international crimes. According to the complementarity principle and the approaches by which

the Court can exercise its jurisdiction, all states, whether they are parties to the ICC or not,

should make sure that their legal criminal systems meet the standard criteria of investigation

and prosecution and try perpetrators of these crimes in good faith. Otherwise the ICC can step

in and decide that the case is admissible. I am not saying that the scope of the ICC jurisdiction

should be widened, at least at present, because we still need the efforts of non-parties’

cooperation with the ICC as the later does not impose any obligation on them. Furthermore,

national courts will remain playing the main role in prosecution of the international crimes and

that simply because of that the ICC jurisdiction is limited by some crucial constraints. Article

10 limits the ICC jurisdiction only over crimes that committed after 2002, ratione temporis as

well as Article 5 that states the jurisdiction solely over the most heinous international crimes

ratione materiae. In addition, the ICC at present does not have a jurisdiction over some serious

international crimes that are subject to universal jurisdiction such as terrorism. Nonetheless, all

states in the world should know that there is no safe haven for all perpetrators after the ICC

era, and the double aims of the complementarity, especially respecting a state sovereignty, will

53 Linda E. Carter, the Principle of Complementarity and the International Criminal Court: The Role of Ne Bis in Idem, Santa Clara Journal of International Law, 2009. Available at SSRN: http://ssrn.com/abstract=1479628.

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possibly promote the principle of universal jurisdiction, therefore, it might likely widen the

scope of the ICC jurisdiction in foreseeable future. In short, the ICC provides a sufficient

system by which we can avoid, at least theoretically, the deficiency in the national suppression

of the ICC crimes.

BIBLIOGRAPHY

1. Articles/Books/Reports

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Guenguen et al. v Habre

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Rome Statute: of International Criminal Law, adopted on 17 July 1998, (entered in

force on 1 July 2002).

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Vienna Convention on the Law of Treaties, opened for signature on 23 May 1969, art

34, (entered into force on 27 January 1980).

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(Accessed, November 1, 2008).

By: Farid Mohammed Rashid

International Criminal Law

2010

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