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Complementary jurisdiction and international criminal justice

Published online by Cambridge University Press:  19 April 2010

Oscar Solera
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Type
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Information
International Review of the Red Cross , Volume 84 , Issue 845: Impunité/Impunity , March 2002 , pp. 145 - 171
Copyright
Copyright © International Committee of the Red Cross 2002

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References

1 It should be considered that the concept of concurrent jurisdiction has been applied to inter-State relations for quite a few years. For further developments, see Brownlie, Ian, Principles of Public International Law, 4th edition, Clarendon Press, 1995, p. 317 ffGoogle Scholar.

2 In furthering the definition of comptementarity, the Ad Hoc Committee on the Establishment of an International Criminal Court felt obliged to clarify how this concept should be understood within national jurisdiction. Once a clear definition of the concept had been established, it could then move on to determine the relationship between the national and international jurisdictions, giving special consideration to the nature of exceptions to the exercise of national jurisdiction, to determining the authority competent to decide on those exceptions, and to the timing requirements. National jurisdiction was seen as “not limited to territorial jurisdiction but also [as including] the exercise of jurisdiction by the States competent to exermentarity, cise jurisdiction in accordance with established principles and arrangements: thus, with respect to the application of military justice, it was not so much the territorial State that was important, but the State whose military was involved. The status-of-forces agreements and extradition agreements also had to be taken into consideration in determining which State had a strong interest in the issue and should consequently exercise jurisdiction.” Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, General Assembly, Official Records, 50th session, Supplement No. 22 (A/50/22), para. 39.

3 Yearbook of the ILC, ibid., paras 118–119.

4 Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONF.183/2/Add.1, para. 157.

5 Yearbook of the ILC, 1992, Vol. II, part 1, para. 7.

6 Yearbook of the ILC, 1990, Vol. II, part 2, para. 130.

7 In this first draft statute, the Special Rapporteur proposes the following text: “1. The Court shall try individuals accused of the crimes defined (…) in respect of which the State or States in which the crime is alleged to have been committed has or have conferred jurisdiction. 2. Conferment of jurisdiction (…) shall be required only if such States also have jurisdiction, under their domestic legislation, over such individuals.” The Comments to these proposals state that: “(…) Here again, the Special Rapporteur has thus taken account of the comments of the members of the Commission who expressed concern that the criminal jurisdiction of States should be respected.” Yearbook of the ILC, 1991, Vol. II, part 1, paras 38–41.

8 Yearbook of the ILC, 1991, Vol. II, part 2, para. 114.

9 Ibid., para. 115.

10 Yearbook of the ILC, 1991, Vol. II, part 1, para. 41.

11 Ibid., para. 42.

12 Yearbook of the ILC, 1991, Vol. II, part 2, para. 116.

13 Yearbook of the ILC, 1992, Vol. II, part 2, para. 57.

14 Yearbook of the ILC, 1993, Vol. II, part 2, Annex.

15 Yearbook of the ILC, 1994, Vol. II, part 2, para. 81.

16 Yearbook of the ILC, 1993, Vol. II, part 2, Annex, p. 37.

17 Yearbook of the ILC, 1994, Vol. II, part para. 90.

18 Recommendations of the Bureau concerning the work of the Ad Hoc Committee during the period 14–25 August 1995, Informal Paper No. 5/Rev. 2.

19 Bassiouni, Cherif, “Observations concerning the 1997–98 Preparatory Committee's work”, in Nouvelles Etudes Penales — The International Criminal Court: Observations and Issues before the 1997–98 Preparatory Committee; and Administrative and Financial Implications, No. 13, érès, 1997, p. 9Google Scholar.

20 Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, General Assembly, Official Records, 50th session, Supplement No. 22 (A/50/22), para. 30.

21 Delegations supporting this position argued that national systems have the following advantages: “(a) all those involved would be working within the context of an established legal systern, including existing bilateral and multilateral arrangements; (b) the applicable law would be more certain and more developed; (c) the prosecution would be less complicated; (d) both prosecution and defence were likely to be less expensive; (e) evidence and witnesses would normally be more readily available; (f) language problems would be minimized; (g) local courts would apply established means for obtaining evidence and testimony, including application of rules relating to perjury; and (h) penalties would be clearly defined and readily enforceable. (…)”, ibid., para. 31.

22 Ibid., para. 32.

23 Report of the Ad Hoc Committee, op. cit. (note 2), para. 45.

24 The Committee mentioned international judicial cooperation, surrender, extradition, detention, incarceration, recognition of decisions and applicable law.

25 Report of the Preparatory Committee on the Establishment of an International Criminal Court, Supplement No. 22 (A/51/22), Vol. I, para. 154.

26 Ibid., para. 155.

27 Ibid., para. 156.

28 Ibid., para. 161.

29 Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONF.183/2/Add. 1, p. 10.

30 Ibid., p. 9.

31 Report of the Ad Hoc Committee, op. cit. (note 2), para. 42.

32 Paragraphs 2 and 3 of Article 17 refer to the criteria that the Court should apply in deciding the admissibility of a case. Reference is made to proceedings being taken “for the purpose of shielding” a person from criminal responsibility, “unjustified delay” in the proceedings, or acting in a way which “is inconsistent with an intent to bring the person concerned to justice”.

33 Report of the Ad Hoc Committee, op. cit. (note 2), para. 51.

34 Report of the Preparatory Committee, op. cit. (note 25), para. 162.

35 Ibid., para. 163.

36 Ibid., para. 164.

37 Interested State was defined as “the State of which the accused is a national, the State(s) of which the victim or victims are nationals, the State which has custody of the accused, the State on which the alleged crime was committed (State of locus delicti) or any other State which could exercise jurisdiction in respect of the crime”, ibid., para. 167.

38 Ibid., para. 168.

39 Ibid., para. 170.

40 Report of the Ad Hoc Committee, op. cit. (note 2), p. 45.

41 Ibid., pp 135–136.

42 The Ad Hoc Committee put forward two options for regulating complementarity: the first held that a statement in the Preamble to the Statute was insufficient and that more precision was therefore required in a specific provision to that effect; this was seen as a way of indicating the importance attached to this principle. An alternative view stated that the principle of complementarity could be elaborated in the Preamble; the rules of interpretation of the Vienna Convention on the Law of Treaties would be sufficient to determine the context in which the Statute as a whole was to be interpreted and applied, Report of the Ad Hoc Committee, op. cit. (note 2), paras 35–37.