The principle of complementarity is the fulcrum that prioritizes the authority of domestic forums to prosecute the crimes defined in Article 5 of the Rome Statute. The balance of judicial authority between the ICC and states is therefore the bridge that carries the weight of the Rome Statute.
An Overview of the ICC Framework
Article 12 Limitations on the Jurisdiction of the Court
To ensure the preservation of individual state sovereignty and fulfill the promises of complementarity, the Rome Statute contains specific limitations on the exercise of the Court's power. The terms of Article 12 restrict the Court; at least one state that could normally exercise jurisdiction over the case will have indicated consent to the Court's jurisdiction. Should all states involved in a conflict refuse to consent to the power of the Court26, the conditions of Article 12 are not met and the ICC is powerless to hear the case in the absence of a referral of the situation by the Security Council with using the scope of Chapter VII authority.
If a state could defeat the ICC's jurisdiction simply by revoking its prior consent to the court, there would be no limit to the politicization and polarization that would accompany any state referral. Second, the ICC can exercise its jurisdiction once the case has been referred to the Prosecutor by the Security Council under Chapter VII of the United Nations Charter. An example of a referral from the Security Council, where the individual state will not submit to the court's jurisdiction, is the current situation in Sudan.
This is one of the legal mechanisms that enable the Rome Statute to achieve its purpose. See Rome Statute, supra note 1, pmbl. stating the purpose of establishing the International Criminal Court).
The Admissibility Framework
As a preliminary matter, the substantive jurisdiction of the ICC is limited to only "the most serious crimes of concern to the international community as a whole."51 This threshold is a subtle, yet potentially powerful, limitation on the Prosecutor's power with respect to sovereign forums. To that end, article 17(1)(d) of the Rome Statute reaffirms that a case is inadmissible where there is "not sufficient seriousness to justify further action by the Court.,52 Works in tandem with the seriousness criteria of article 17, section 53(l)(c) allows the Prosecutor to take the seriousness of the crime into account when determining whether to proceed with an investigation.53 These provisions were particularly noteworthy in the wake of more than 240 communications received by the Prosecutor raising allegations related to the invasion of Iraq by coalition forces in 2003. Taking all the considerations into account, the situation does not appear to have met the required threshold of the Statute.
In light of the conclusion reached on gravity, it was unnecessary to reach a conclusion on complementarity. See also Office of the Prosecutor, Paper on Certain Policy Issues at the Office of the Prosecutor, September Having regard to paragraph 10 of the Preamble and Article 1, the Court will decide that a case is inadmissible when: a).
The case has been investigated by a State having jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision is a result of the State's unwillingness or inability to effectively prosecute. John Holmes, Complementarity: National Courts versus the ICC, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY (A. Cassesse et. al. eds., 1I' ed. 2001).
Procedural Aspects of Complementary Jurisdiction
If the prosecutor wants to pursue the case, he must turn to the Court and then prove that the state investigation is inadequate. 34;If such a State informs the Court within one month of notification that it is investigating the case, the Prosecutor must postpone the investigation of the State unless he can convince the Pre-Trial Chamber that the investigation is a sham. An example of the successful functioning of complementarity, where the prosecutor deferred from the state's successful investigation and prosecution, is demonstrated by R v.
While the Pre-Trial Chambers must authorize the Prosecutor to proceed with his own investigation, nothing in the Statute prevents the Prosecutor from announcing on behalf of the Court that a state investigation has been determined to be insufficient.74 This could be important and far-reaching. -which achieve repercussions for states. Such a determination by the Prosecutor speaks implicitly of a state's apparent willingness to cooperate with the Court or resolve the situation, which could lead to tension in the international community. The Pre-Trial and Trial Chambers are given significant authority before and during a trial which in effect provides some limitation on the power of the Prosecutor in the interests of domestic primacy.
First and foremost, the Pre-Trial and Trial Chambers must give positive consent to enable the continuation of an investigation on its own.75 The prosecutor must convince the Chambers of this. See the Rome Statute, supra note 1, art. Rome Statute, supra note 1, art. 34;[Chambers may] authorize the Prosecutor to undertake specific investigative steps in the territory of a State Party without obtaining the cooperation of that State.").
Criticisms Raised Against the Complementarity Structure
Although it is well beyond the scope of this article to review the range of arguments surrounding ICC policy and prospects, two key criticisms of the court are directly relevant in assessing the future of complementarity as a viable limit on the reach of the Court. The gravamen of the objection seems to be that the Court can exercise jurisdiction over nationals of non-States that are Parties to the ICC under the current formulation of Article 12. However, there are no further guidelines to standardize this provision; instead, it is left solely to the opinion of the Court.
34; The ICC exercises the powers of an administrative body, but has no mechanism to represent the consent of the governed. See Haynes, supra note 87 ("The Office of the Prosecutor of the International Criminal Court, although established by a multilateral treaty, is an autonomous, largely unchecked, unilateral agency with virtually complete powers to prosecute crimes."); see also Bolton, supra note 30 (“Political checks are severely weakened or non-existent. Judge Louise Arbour, Address to the Preparatory Committee for the Establishment of an International Criminal Tribunal (dec. in press release, ICTY, Prosecutor of International Tribunals) for the former Yugoslavia and for Rwanda, urges that the International Permanent Court of Justice "Be.
Critics of the admissibility regime argue that the Pre-Trial, Trial and Appeal Chambers are completely ineffective mechanisms for protecting state prerogatives in relation to the pursuit of complementarity. If complementarity is to have any force in the future (and the reader would do well to remember that the ICC is deliberately structured as a permanent institution) the ICC must adhere to the rationale of the good faith of domestic law enforcement officials. the sovereign.
The Substantive Flashpoints
Domestic Implementation Rationales and Regimes
In either situation, the ICC Prosecutor may arguably be authorized to step in and prosecute that state's national due to the state's inability to prosecute the full conduct under its criminal system. Authority of US Courts to Hear Crimes Within the Jurisdiction of the International Criminal Court, 35 NYT ENG. Some states have simply adopted the substantive crimes of the Rome Statute into their national laws, either explicitly or by reference.'09 It is not the case to use the identical definition from the Rome Statute.
110 By enacting a law mirroring the Rome Statute, the UK could try its own citizens on its own soil instead of placing them in the hands of the ICC. If the ICC takes a purist stance requiring exact adherence to the structure of the Rome Statute, other nations face more daunting obstacles in exercising their right to complementarity because they have implemented different definitions of the ICC crimes in their domestic law has. These domestic definitions of crimes deviate from the structure of the Rome Statute and create a risk that a prosecution, especially for an extraterritorial crime, 113 may conflict with the principle of nullum crimen sine lege.
33 (UK) (where British soldiers were accused of committing war crimes and the case was brought to the attention of the ICC Prosecutor. Conversely, a number of states have chosen not to criminalize all conduct prohibited by the ICC.
The Character of the Crimes Alleged
The Rome Statute, on the other hand, makes no distinction as to the nature of the charge in the provisions implementing the principle of complementarity. The form of the charge in domestic states does not affect the space that the supranational court must grant national processes. The second part of the test refers to the gravity threshold that any case must meet in order to be admissible before the Court.
Another additional wrinkle to this potential problem is the fact that the Pre-Trial Chamber itself can, and has, amended the indictment filed by the Public Prosecution Service. ICC case law or practice should not evolve to the point where domestic prosecutors make charging decisions based on the vague hope that the ICC will do so. The seriousness of the crimes is related to the nature, manner and impact of the attack.
ICC Office of the Prosecutor, Statement by the Chief Prosecutor on the Uganda Arrest Warrant (14 October 2005). Second, in assessing the weight of the relevant behavior, attention must be paid to the social alarm that such behavior may have caused in the international community. 148.
Complementarity Following State Self-Referrals
Conclusion
The rhetoric of Court officials regarding complementarity has subtly shifted from a tone of cooperation and consultation to one of competition in the early years of the ICC's operation. The plain meaning of Article 17 in light of the object and purpose of the Statute indicates that states have the primacy of jurisdiction, and that the institutional interests of the ICC cannot override good faith decisions of domestic officials. The text of the Statute, together with the clearly expressed intent of its drafters, indicates that the Court should maintain a strong preference for domestic enforcement of the substantive offenses covered by Articles 6, 7 and 8.
Indeed, there are strong pragmatic reasons for retaining the preference in the Rome Statute for national authority in light of the demonstrated need for the Court to improve States' cooperation in the collection of evidence and the transfer of persons subject to arrest warrants. Although the early indications discussed in this article may be considered fanciful or unnecessarily alarmist, they may represent the crystallization of an institutional mindset that could lead to disastrous results in the long term. The ICC cannot long maintain an adversarial stance towards sovereign states working in good faith to prosecute the perpetrators.
A position of latent hostility to sovereign states seeking to develop and enforce their own.
