Implications of Complementary Jurisdiction in International Law - Essay Example

?Implications of Complementary Jurisdiction in International Law The implication of complementary jurisdiction given universal jurisdiction in international law is that universal jurisdiction continues to be upheld with complementary jurisdiction. This is because complementary jurisdiction or, in particular, the jurisdiction of the International Criminal Court only applies in “most serious crimes of international concern” and normally when the State is unable or unwilling to address to address crimes of “most serious crimes of national concern.” Implications of Complementary Jurisdiction in International Law What are the implications of the principle of complementary jurisdiction in the statute of international court with special reference to the role of universal jurisdiction in the international justice system? I. Introduction The creation of an international criminal court is a fairly recent development. It was proposed in 1989 before the General Assembly of the United Nations by the delegation of Trinidad and Tobago related to the then newly-acknowledged international crimes: drug-trafficking.1 At the same time, the Trinidad and Tobago delegation’s proposal was not new because there draft criminal tribunal statutes in 1951 and 1953. The Rome Statute of the ICC is an important document establishing the International Criminal Court. The Statute was entered into force in 2002. One important principle in the Rome Statute of the ICC is the principle of complementary jurisdiction. The principle of complementary jurisdiction or “complementarity principle” means that the International Criminal Court, hereinafter simply called as the “Court”, “can only investigate and prosecute core international crimes (war crimes, crimes against humanity and genocide) when national jurisdiction are unable or unwilling to do so genuinely.”2 Morten Bergsmo contrasted complementary jurisdiction from universal jurisdiction. According to Morten, universal jurisdiction “is a jurisdictional basis of last resort which a number of national crime justice system provide for, when core international crimes can not be prosecuted on the basis of the principle of territoriality (in the state where the crimes occurred), active nationality (in the state of the alleged perpetrator) or passive nationality (in the state of the victim).”3 According to Bergsmo, “in its pure form, universal jurisdiction enables the prosecution of core international crimes committed in a foreign state, by a foreign citizen, against foreign victims, when neither has a personal link to the forum state.” 4 Nevertheless, universal jurisdiction “plays a small, but very significant, role in the new and still developing framework of international criminal law.”5 Hall said that universal jurisdiction performs at least two important roles in complementary jurisdiction: as a catalyst for investigations and prosecutions both at the national and international levels and for addressing impunities that cannot be addressed by complementary jurisdiction alone.6 II. Complementary Jurisdiction as Implied in the Rome Statute of the ICC The notion of complementary jurisdiction has been a concerned in the last 20 years.7 Based on the work of Oscar Solera, the notion of complementary jurisdiction emerged because punishment of international crimes is essential to world peace but it is not only the international court that has the jurisdiction and competence to try criminals but also the domestic courts.8 According to Solera, the question of complementary jurisdiction was only addressed “in depth” since the 1980s. The issue of complementary jurisdiction was one of the thorny points in the creation of the international criminal court as it was included several times in the agenda “but was not taken up by any specific working group in its agenda and was thus left to the Committee of the Whole.”9 Solera pointed out that the concept of complementary jurisdiction “was finally accepted as proposed by the Preparatory Committee and explicitly incorporated in the Preamble and in Articles 1, 17, 18 and 19 of the Statute, although it is clear that it permeates the whole structure and functioning of the Court.” 10 Years later, to address the problem of “linkage between domestic and international jurisdiction the Security Council in creating the International Criminal Tribunal for the former Yugoslavia (ICTY) and its counterpart for Rwanda, decided to vest both tribunals with what was called concurrent jurisdiction, coupled with a primary “clause.”11 The Rome Statute of the International Criminal Court was circulated as an official document on 17 July 1998. It underwent several deliberation and revisions in 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002 before being entered into force on 1 July 2002.12 The preamble of the Rome Statute of the International Criminal Court clearly emphasized that the State parties to the Statute agree that the duty to exercise criminal jurisdiction over those responsible for international crimes lies in the state. ”13 Yet, at the same time, the parties to the Statute affirmed that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.”14 Following paragraph 7 of the ICC Statute that state that “all States shall refrain from the use the use of threat or force against any nation, paragraph 8 of the ICC Statute emphasized that nothing in the ICC Statute shall be construed to mean that any State Party is authorized “to intervene in an armed conflict or in the internal affairs of the State.” Thus, for the ends of non-interference, “an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the community as a whole” was established. Based on the foregoing, it is viable to argue two points. First, in principle, the establishment of the ICC is an act of the United Nations to prevent State Parties to intervene in the internal affairs of the State. Second, despite the first point, the ICC nevertheless has jurisdiction “over the most serious crimes of concern to the whole community as a whole” as an independent body. If follows that a justifiable interpretation of complementarity is that while States have jurisdiction over international crimes, the “independent” ICC has jurisdiction “over the most serious crimes of concern to the international community as a whole.” The notion of complementary jurisdiction is clearly defined at the outset in Article 1 of the Rome Statute of the ICC. Article 1 of the ICC Statute says that the ICC “shall have the power to exercise jurisdiction over persons for the most serious crimes of international concern” and shall be “complementary to national jurisdiction.” Clearly, this implies that the ICC has the prerogative or option of asserting its jurisdiction to “serious crimes of international concern.” At the same, the jurisdiction is not absolute as it is subject to the provision of the Statute. Article 5 of the Rome Statute of the ICC defines the “serious crimes of international concern” that are within the jurisdiction of the ICC: genocide, crimes of humanity, war crimes, and the crime of aggression.15 However, Article 5.2 of the Rome of Statute of the ICC says that the ICC “shall exercise jurisdiction over the crime of aggression once a provision is adopted.” According to Article 5.2 of the Rome Statute of the ICC, the provision to be adopted must be consistent with Articles 121 and 123 of the Rome Statute as well as with the relevant provisions of the Charter of the United Nations. The crime of genocide is discussed in detail in Article 6; crimes against humanity in Article 7, and war crimes in Article 8. Under Article 11 of the Rome Statute of the ICC, the ICC has jurisdiction over “most serious crimes of international concern” after the “entry into force” of the Rome Statute or after 1 July 2002. Further, based on Article 11, the ICC may exercise jurisdiction over a “most serious crimes of international concern” after the entry into force of the Statute for the State.16 It does not seem immediately clear under the Statute when the Statute becomes entered into force in one country but Article 12 of the Rome Statute says that “a State which becomes Party” to the Statute is deemed to have accepted the jurisdiction of the ICC over crimes considered “most serious crimes of international concern.”17 Article 13 of the Rome Statute of the ICC requires that for the ICC to exercise jurisdiction, a State Party must have referred the case to the ICC Prosecutor or the UN Security Council must have referred the case to the ICC Prosecutor.18 To elaborate, according to Article 13(b) of the Rome Statute of the ICC, the “crime of most serious international concern” must be referred to the Prosecutor by the National Security Council, “acting along Chapter VII of the Charter of the United Nations.” Article 14 provides that outside parties or parties can also refer the case to the ICC prosecutor. Finally, based on Article 13 and 15, the ICC Prosecutor can also take a case on their initiative. Based on information received, the ICC Prosecutor may submit a request to the Pre-Trial Chamber a request for authorization of investigation.19 In turn the ICC can authorize the investigation “without prejudice to subsequent determination by the Court with regard to the jurisdiction and admissibility of a case.”20 Under Article 17 of the ICC Statute, a case before the ICC is inadmissible if “the case is being investigated or prosecuted by the State which has jurisdiction over it” except when “the State is unwilling or unable to carry out the investigation or prosecution.”21 A case is also inadmissible when the State that has jurisdiction has decided not to prosecute except for “unwillingness or inability of the State genuinely to prosecute.”22 Another type of inadmissible cases consist the cases which are not most serious enough to merit the attention of the ICC.23 Recall that based on Article 1, the scope of jurisdiction of the ICC is limited to the “most serious crimes of international concern.”24 Thus, in sum, although States can file a case directly to the ICC, the ICC Prosecutors can forward a case to the Pre-Trial Chamber for investigation while the UN Security Council can refer a case to the ICC Prosecutors. For “most serious crimes of international concern” in which the ICC may exercise jurisdiction, “unwillingness” of the State to prosecute is determined based on State actions to shield a perpetrator from prosecution, unjustified delay, and lack of independence of the prosecuting bodies or impartiality.25 In contrast, inability of the State to prosecute that can give a ground for the ICC to assume jurisdiction over “most serious crimes of international concern” is considered based on the “total or substantial collapse or unavailability of its national system” such that “the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.”26 Under Article 16, the UN Security may defer the filing or the investigation of a case. Article 18 of the ICC Statute provides that even in cases where the ICC has poised to assume jurisdiction over a case, the State involved may indicate that “it is investigating or has investigated its nationals or others” and assert its jurisdiction over the case.27 The Prosecutor from the International Criminal Court may defer to State investigation but the Prosecutor may review the same six months after the deferral.28 In particular, the Prosecutor from the ICC may assess whether “there has been a significant change of circumstances based on the State’s willingness or inability to genuinely carry out the investigation.”29 Article 20 of the Rome Statute of the ICC indicate that even if a criminal suspect for “most serious crimes of international concern” has been tried under State jurisdiction, the same can be retried when the State-sponsored trial “were for the purpose of shielding the person concerned from criminal responsibility.”30 The same also applies if the State-sponsored trial “were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.”31 Under Article 21 of the Rome Statute of the ICC emphasises that the laws of States “that would normally exercise jurisdiction over the crime” are the ones applicable over a crime as long as the State laws “are not inconsistent” with the Rome Statute of the ICC “and with international law and internationally recognised norms and standards.”32 This implies that even for “most serious crimes of international concern,” the laws of States that normally have jurisdiction over crime are the ones applicable provided they are not consistent with the Rome Statute of the ICC. In other words, State Statue applies even for “most serious crimes of international concern” provided the State Statues are consistent with Rome Statute of the ICC. Further, where the State Statutes are not consistent with the Rome Statute of the ICC, the Rome Statute of the ICC applies. These seem to among the fundamental cornerstones of the notion of complementary jurisdiction in international law. For “most serious crimes of international concern,” the ICC will apply the Rome Statute of the ICC, the ICC principles of the element of crimes and its rules of procedure and evidence.33 Further, where appropriate, the ICC will apply the “applicable treaties and the principles and rules of international law, including the established principles of international law of armed conflict.”34 Further, “the Court may apply principles and rules of law as interpreted in its previous decisions.”35 This indicates that the ICC may or may not apply the rulings or the principles and rules of law that were established with their earlier decisions. Further, Article 21 of the Rome Statue of the ICC emphasised that the ICC will make rulings that are “consistent with internationally recognized human rights.”36 Under Article 34 of the Rome Statute of the ICC, the Office of the Prosecutor is one of the four organs of the International Criminal Court wherein the presidency, the Appeals Division, and the Registry are the three of the four organs of the International Criminal Court. The ICC has the prerogative of assessing the admissibility of any case brought before it even as challenges to the admissibility of case for the ICC’s jurisdiction can be forwarded by the State which a jurisdiction over the case, the accused, or party summoned to appear before the ICC. 37 In cases where there are challenges to jurisdiction, the ICC Prosecutors may seek a ruling from the ICC on jurisdiction and admissibility.38 Pending a decision on jurisdiction and admissibility, the ICC Prosecutors may pursue investigative steps, take statements, and other measures after obtaining authority from the ICC.39 III. Complementary Jurisdiction As Discussed by Legal Scholars Rod Rastan argued that complementary jurisdiction under the Rome Statute can be understood in two ways: admissibility and burden sharing.40 Rastan pointed out that the admissibility aspect suggests competing jurisdiction.41 In admissibility, the situation where both the State having normal jurisdiction over a case and the ICC both have jurisdiction over a crime imply that State and ICC jurisdiction have competing jurisdictions over a crime.42 However, when the State jurisdiction an ICC jurisdiction is seen as burden-sharing, then State jurisdiction and ICC jurisdiction over a case can be seen as complementary.43 Unfortunately, the Rastan perspective on complementary jurisdiction may be inappropriate because as described earlier, State jurisdiction continues to persist but when State action on the crime are not consistent with international law or that the State is deemed to be unwilling or unable to take a case, the ICC can assume jurisdiction over the crime. It should also be emphasised that ICC jurisdiction is limited to “most serious crimes of international concern” that are defined by the Rome Statute of the ICC in Articles 5 to 8 of the Rome Statute of the ICC. Jo Stigen emphasised that complementary jurisdiction under the Rome Statute of the ICC would help “prevent impunity for core international crimes by letting an alternative judiciary step in when the States that should normally have prosecuted fail.” 44 For Stigen, complementary jurisdiction can be seen as a fallback mechanism.45 In other words, one could interpret complementary jurisdiction under the Rome Statute as a tool of the State to ensure that the crimes that the State also consider punishable are addressed when the State is unable or unwilling to exercise jurisdiction. Cedric Ryngaert pointed out that the complementary jurisdiction principle “as designed by the drafters of the Rome Statue, was meant to apply vertically.”46 Vertical complementation means that “a supra-national institution, the International Criminal Court (ICC), would supervise the investigative and prosecutorial work of States (Parties to the Rome Statue), and, applying Article 17 of the Statute, assume its responsibilities (that is, declare a case admissible) if that work proved to be below acceptable standards.”47 Thus, one could interpret complementary jurisdiction as the integration of the international law into State law, giving jurisdiction to the ICC to assume jurisdiction on a case if the State is unwilling or unable to address “most serious crimes of international concern.” Hall pointed out that there are two main principles of complementary jurisdiction.48 The first form is passive (also known as classical complementarity, according to Cristopher Hall) where “the International Criminal Court merely complements investigations and prosecution and investigating and prosecution” of the crimes of genocide, crimes against humanity and war crimes.49 The second form of complementary jurisdiction is positive wherein “the Prosecutor does not simply wait passively for national police and prosecutors to fail to act genuine, but actively encourage states to enact the necessary legislation to permit them to investigate and prosecute” the three core crimes.50 Pocar and Maystre argued that a key principle in complementary jurisdiction is that the “primacy responsibility for enforcing criminal liability for violations of core international crimes rests on the national criminal jurisdictions of State Parties to the Rome Statute.”51 Thus, within the said context, Pocar and Maystre suggest that within the principle of complementary jurisdiction, “the ICC acts as a safety net.”52 They elaborated that in this safety net principle, the ICC jurisdiction will be invoked “will only be engaged where states do not fulfil their obligations under international law by exercising effective criminal jurisdiction over the crimes set out in the Rome Statute.”53 IV. Cases One case in which the principle of complementary jurisdiction or principle of complementarity was tested was in the case of Sundanese nationals Ahmad Harun and Ali Kushayb before the International Criminal Court.54 Harun was interrogated by Sudanese authorities for “incidents in connection in the Darfur conflict” but was released due to “lack of evidence.”55 The ICC assumed jurisdiction over the case, citing that the proceedings against Harun lacked independence56. V. Conclusion: Implications of Complementary Jurisdiction In conclusion, the implication of complementary jurisdiction given universal jurisdiction in international law is that complementary jurisdiction continues to uphold universal jurisdiction even as complementary jurisdiction provides the assumption of ICC jurisdiction over cases when States are unable or unwilling to address the “most serious crimes of national concern.” This is so because with ICC jurisdiction over the case, the States which are the party to the Rome Statute of the ICC assumes jurisdiction over the case. As parties which are signatories to the Rome Statute of the ICC, it is the State parties that assumes jurisdiction whenever the ICC assumes jurisdiction over the case. In cases where the accused is a citizen of a country that is not a signatory to the ICC, the assumption of jurisdiction by the ICC can be invoked through universal jurisdiction especially when the aggrieved is a citizen is a country that is a signatory to the Rome Statute. Under the Rome Statute, the UN Security Council can instruct the ICC Prosecutors to address a case. This may represent a grey area whether the independence of States is subverted by the ICC with the assumption of jurisdiction of the ICC. However, one possible interpretation of the situation that can be forwarded is that the State may not unwilling or incapable to uphold rule of law or the rule of international law in the situation. Meanwhile, complementary jurisdiction under current international law or based on the ICC Statute holds that both the ICC and the States have joint jurisdiction over “the most serious crimes of concern to the international community as a whole.” Under this joint jurisdiction, States continues to have jurisdiction over “the most serious crimes of concern to the international community as a whole.” However, should States be unable or unwilling to impose sanctions over the said crimes or should States be unable to act on the crimes in manner that is not consistent with the Rome State of the ICC, the ICC as an independent body can assume jurisdiction of the over the crime, file charges through Prosecutor and render justice consistent with international laws. The overriding concern is that “the most serious crimes of concern to the international community as a whole must not go unpunished.”57 One can also sum up complementary jurisdiction this way: State Statutes apply to “most serious crimes of international concern” provided they are consistent with the Rome Statute of the ICC. When State Statutes are inconsistent with the Rome Statutes of the ICC for “most serious crimes of international concern,” it is the Rome Statute of the ICC that applies. However, this does not mean that State Jurisdiction is subverted as ICC jurisdiction upholds the primacy of the State parties in the ICC. ICC jurisdiction implies the jurisdiction of State parties in the Rome Statute of the ICC. Read More