Implications of Complementary Jurisdiction in International Law - Essay Example

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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…
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Implications of Complementary Jurisdiction in International Law
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Download file to see previous pages 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.” 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).” 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.”...
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 ...Download file to see next pagesRead More
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