Complementary Jurisdiction

Complementary Jurisdiction
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Complementary Jurisdiction
Title
Explain and Comment upon the principle of complementary jurisdiction as exercised by the
International Criminal Court.
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Complementary Jurisdiction
Abstract
This essay will focus on the definition, interpretation and application of the principle of
complementary jurisdiction. It will focus on the relevant sections of the Statute of the ICC, in
particular Article 17. It will reflect on the responsibility of states to prosecute international
crimes that fall in the ambit of the jurisdiction of the ICC. It will outline and analyze the
situations where there are tensions between state parties and the ICC over the prosecution of
individuals. It will critically discuss the jurisprudence in the Libyan cases (Gaddafi and Al
Senussi). It will offer a view on whether complimentary jurisdiction sustains state
sovereignty in the area of international criminal prosecutions or challenges it.
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Complementary Jurisdiction
The statutes that led to the formation of the International Criminal Tribunal for the former
Yugoslavia (ICTY)and the International Criminal Tribunal for Rwanda (ICTR)laid the
cornerstone forthe principle of complementary jurisdiction in the Rome Statue, which created
the International Criminal Court (ICC).1.Both these tribunals at – former Yugoslavia and
Rwanda were formed on ‘adhoc basis’ at the international level,for investigating and
conducting trial of those individuals who violated international humanitarian law including
genocide, war crimes and other crimes against humanity.2These tribunals provided a link
betweendomestic jurisdiction of the country andinternational jurisdiction of the Security
Council. 3It worked on the principle of “concurrent jurisdiction”,wherein both the domestic as
well as international jurisdiction overlapped in these matters. Further, since these matters
were gravely disturbing, one of its kind post the Second World War and were aimedtowards
bringing justice and restoration of peace in former Yugoslavia and Rwanda, the statutes –
ICTY and ICTR were given “primacy”over the domestic jurisdiction.For both these cases,
one single appellate tribunal was set up. These steps, though were taken in good spirits, gave
rise to confusion and controversy as the countries – former Yugoslavia and Rwanda felt that
with the primacy clause, the sovereignty of these countries was being questioned.4
Thus, in order to put aside such confusion in any future events, a new kind of system was
required in the international laws. This led to creation of Statute of the International Criminal
Court (ICC), which was presented before the General Assembly of United Nations (UN)
establishing the principle of “complementary jurisdiction”.
1 "The Complementarity Principle As A Factor Of Unification Of Physical Theories: Complementarity And
Conformity" (2).
2 Zeidy M, 2008. "The Principle Of Complementarity In International Criminal Law: Origins, Development And
Practice.Martinusnijhoff."164
3 Bantekas, I (2010) International Criminal Law (2010) 4 Oxford: Hart Publishing: 9
4 Amin Nouri, "The Principle Of Complementarity And Libya Challenge To The Admissibility Before The
International Criminal Court" [2013] SSRN Electronic Journal.
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Complementary Jurisdiction
With the past experiences with ICTY and ICTR, the ICC was considered not to have primacy
over the domestic Courts of that country, but to complement the domestic Courts and
interfere in the matters only when the domestic jurisdiction was not clear, unavailable or
unable to achieve success in these grave matters. 5.Thus, according to the principle of
“complementary jurisdiction”, the ICC will be competent to investigate a matter and try the
responsible person(s) only in the case where there is no country to claim domestic jurisdiction
in the matter. 6The country and domestic Courts will play the pivotal rolein the matters.
However, if the domestic Courts are not able to investigate or adjudicate the matter or do not
play the required role or are not interested in the matter or appear to have badfaith, the ICC
may step in to make sure that the due process is followed for doing justice and restoring
peace. (Holmes,1999, p. 75)
The ICC, in effect, functions in those cases where those international criminals (who have
committed grave crimes against humanity, etc.)Cannot be properly investigated and tried in
domestic courts.7 The ICC acts as an authority, which complements the existingdomestic
Courts, following their jurisdictions, rules and procedures in the matters that require
international cooperation. 8It does not intend toexclude or override the jurisdiction of
domestic Courts. Therefore, the ICC can only investigate and adjudicate in those matters
which fall under the four core international crimes as envisaged in the Rome statute in those
situations where the signatory states are neither able nor unwilling to undertake the same on
5 Michael Broache, "Bringing Home Rome: Explaining The Domestication Of The Rome Statute Of The
International Criminal Court" [2015] SSRN Electronic Journal.
6 Markus Benzing, "The Complementarity Regime Of The International Criminal Court: International Criminal
Justice Between State Sovereignty And The Fight Against Impunity" (2003) 7(1) Max Planck Yearbook of
United Nations Law Online.
7 Suzanne Egan, "The Doctrinal Approach In International Human Rights Scholarship" [2017] SSRN Electronic
Journal.
8 Nicola Palmer, "The Place Of Consultation In The International Criminal Court's Approach To
Complementarity And Cooperation" [2016] SSRN Electronic Journal.
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Complementary Jurisdiction
their own. 9Accordingly, the jurisdiction of the ICC will always remain complementary to
that of the domestic courts.
Further, the ICC has jurisdiction over those crimes only thatare committed within the territory
of the signatory or those crimes are committed by a national (individual) belonging to a
signatory state. 10The jurisdiction of the ICC does not extend to those countries which have
not signed the Rome Stature unless the UN Security Council appoints the ICC to investigate
and adjudicate matters which are beyond the territories of signatory states, but is an
international crime. 11This authorisation by the UN Security Council is an exception to the
rule of participating signatory states.
The principle of complementarity is implemented on a case-to-case basis since the ICC can
only exercise its jurisdiction in a specific situation and not all matters. (Hewett, 2006, p.
276).The ICCcannot prevent the domestic Courts or other competent bodies of that state to
investigate and take legal action against the perpetuators of crimes. The ICC and concerned
signatory states must work hand in hand to ensure that those international criminals are
punished and their atrocities are addressed properly so that justice prevails and peace can be
restored in the mind of general public of that state and other states as well. It is important the
concerned state and the ICC work in complete harmony and that no issues of sovereignty of
state crop up during the matter.12 For a thorough investigation and trial of the matter, both the
ICC and domestic13 Courts must integrate their synergies so that there are no loopholes
9 Neil Boister, "International Tribunals For Transnational Crimes: Towards A Transnational Criminal Court?"
(2012) 23(4) Criminal Law Forum.
10 Terje Einarsen, "New Frontiers Of International Criminal Law: Towards A Concept Of Universal Crimes"
(2013) 1(1) Bergen Journal of Criminal Law & Criminal Justice.
11 Adamantia Rachovitsa, "General Principles Of Public Order And Morality And The Domain Name System:
Whither Public International Law?" (2016) 63(1) Netherlands International Law Review.
12 Benvenuti, P (1999) Complementarity of the International Criminal Court to National Criminal Jurisdiction
in Flavia Lattanzi and William Schabas (eds), (2019) 1 Essays on the Rome Statute of the International
Criminal Court, vol I (Il Sirente 1999) 42 (2019).
13 Michael A. Newton, "The Quest For Constructive Complementarity" [2010] SSRN Electronic Journal.
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