February 12, 2006

Complementarity and the ICC

Posted in Uncategorized at 1:58 pm by thelawthoughts

‘Complemenarity’ is a fundamental principle on which the functioning of the International Criminal Court is based. Under the Rome Statute, which established the Court, the ICC can only exercise its jurisdiction where the State Party of which the accused is a national, is unable or unwilling to prosecute. Hence the term ‘complemenatarity’, which makes the ICC a Court of last resort. Where a national of, say Sudan, is accused, then the ICC will only have jurisdiction over the crime where there is an unwillingness or incompetence of Sudanese judicial institutions to prosecute. The reason this principle came into existence was the fear on the part of many prospective States party that the ICC would become a supra-national criminal court and would result in countries losing domestic control of criminal prosecutions.

There are Sudanese nationals who have been accused of war crimes over the recent alleged genocides which occurred there. There was no possibility that these crimes could be prosecuted domestically until only recently. Now, judicial institutions have been set up to try those accused of war crimes. Opinio Juris has a good potted commentary and link.

My philosophical objection to this principle is that the countries in which war crimes are committed are exactly those which require a court like the ICC. For example, there is little chance that a French national will be accused of war crimes, but if they were, I would expect French judicial processes were sufficient to prosecute a war criminal.

However, countries like Sudan set up kangaroo courts which are designed so that the government does not have to hand over its officials to the ICC. So, exactly those who the ICC is most required to punish are those who avoid the court’s jurisdiction by having fake trials.

The best illustration of this is a hypothetical example. If John Howard were accused of war crimes, it is unlikely that DFAT would hand him over to the ICC. This is because Australia has sufficient and suitable processes by which Howard would be prosecuted. However, countries like Sudan, with no judicial oversight, have no chance of dispensing the correct justice where somebody is convicted of war crimes. Indeed, it is difficult for those processes to even obtain a conviction.

In my view, the job of the ICC is to be that supranational institution. No country should ‘have a choice’ whether criminals should be prosecuted. Indeed, the principle of complementarity allows a shield to be placed in front of those accused of the gravest crimes against humanity, by allowing their governments (of which they are usually officials or friends) to ‘prosecute’ them for their alleged offences.

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13 Comments »

  1. Rebecca said,

    Sudan is not a State Party to the Rome Statute. Therefore if a Sudanese national has committed war crimes in Sudan and is in Sudan the ICC has NO jurisdiction whatsoever. The Kangaroo courts have nothing to do with this.

    Even if a national of a State Party committed war crimes in a State that is party to the Statute and the victims were of a nationality of a State party to the Statute, and this person was in Sudan, then Sudan would still be under NO obligation to surrender this person to the ICC. It wouldn’t even have to “pretend” to prosecute, Sudan can then simply refuse to surrender, giving no reason.
    See articles 12 and 89 of the Rome Statute, only State Parties are binded by the Statute.

    • mercy said,

      Rebecca,
      I think there’s also a provision for such cases as Sudan in the territorial Jurisdiction of ICC where it can acquire jurisdiction if the matter is referred to the UN security council then the ICC can handle the issues even if the country aint a signatory of the Rome Statute

  2. Thanks for your comment Rebecca, although you have completely missed the point of my post. I never actually asserted Sudan was a State party, but merely used it as an example of why complementarity is a useless principle where a country LIKE Sudan IS a State party.

    You see, my argument, if you read it carefully, is that when countries such as Sudan, who have actually signed the Rome Statute, prosecute their ‘war criminals’, they often do it in a fudged way, so that (1) their friends escape punishment and (2) they don’t need to send their friends to an international tribunal.

    What people often forget is how often alleged war criminals are entangled with the State apparatus.

    Thank you again, but you didn’t actually read what I said.

  3. Rebecca said,

    “Indeed, the principle of complementarity allows a shield to be placed in front of those accused of the gravest crimes against humanity, by allowing their governments (of which they are usually officials or friends) to ‘prosecute’ them for their alleged offences.”

    No it does not. Article 17 (1) of the Rome Statute does indeed say that a case is inadmissible before the Court if there is a domestic investigation or proceeding. HOWEVER the exception to this is precisely the situation that you have envisioned. Namely if “the proceedings are being undertaken (…) for the purpose of shielding the person concerned from criminal responsibility for crimes” (article 17 (2) a of the Statute) OR if “the proceedings (…) are being conducted in a manner which (…) is inconsistent with an intent to bring the person concerned to justice” (article 17 (2) c of the Statute.

    While I am the first to acknowledge the problems that the ICC faces, it HAS protected itself from “fudged” proceedings in the manner stated above.

  4. How do you prove that intent, Rebecca?

    See, as is often the case with contemporary international law, practice differs from theory.

    It is well and good to have the exception, but at what point do we decide it applies? And further, what stops a State party disputing that interpretation when a trial has been put on, and not handing over the accused?

    I can’t see an arrest warrant being enforced where a State party decides not to comply. Further, my original point is that it is often these parties we specifically want to stop from engaging in this behaviour.

    Don’t worry, I believe in the ICC. I support universal jurisdiction and would go further than the current statute even does in enforcing criminal law. However, I simply think that the countries who we need to support the ICC the most are exactly those who will not, and who further have a vested interest in not supporting the court, because usually the accused is part of the State apparatus.

    You have to remember, Rebecca, that just because the Rome Statute says it don’t make it so. I acknowledge how sad that is, but it is a reality.

  5. BIBI said,

    DEAR ALL,
    I’M INTERESTED IN UNDERSTANDING WHY THE PRINCIPLE OF COMPLEMENTARITY CONSTITUTE A CONCERN FOR INDIA.
    I KNOW THAT STATES IN GENERAL DO NOT WON’T TO GIVE UP TO THEIR SOVREIGNITY, BUT ARE THERE SPECIAL (POLITICAL) MOTIVATIONS THAT EXPLAIN INDIA’S ANXIETY?
    WHY THEY ARE WORRIED FOR HOW THIS PRINCIPLE WOULD BE APPLIED TO THE INDIAN CRIMINAL COURT?
    IF YOU CAN HELP ME IN UNDERSTANDING I WOULD BE GRATEFUL

  6. […] that are not or cannot be effectively prosecuted by national authorities.  The principle of complementarity, preventing prosecution by the ICC when a national authority has jurisdiction has been sufficient […]

  7. Simon Patrick
    August 17, 2011
    Hi All,
    I think the principle is universally known and the problem with it is implementations, so what we need to look about is what to do so as this principle of complementarity to be implemented into practice, what are the possible recommendations towards this?
    That’s the issue we need to work upon.

  8. tammy said,

    why wouldn’t the us join the icc?

  9. Lala said,

    the US won’t join the ICC because it allows an independent prosecutor to bring a criminal to the ICC. for fear of prosecution, the US refuses to sign the Statute

  10. Elias said,

    Only the US authorities know why they have refused to ratify the Rome Statute. Whether they do or not, the ICC is moving on to curb impunity.

  11. Delawar Jahan said,

    The question regarding Sudan is under article 13(2) of the Rome Statute. So, its special provision referring a case by the Security Council.

  12. ANDREW MAYINGA said,

    this principle is much corcened to target african state….


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