CHAPTER 2 CONCEPTUAL AND THEORETICAL FRAMEWORK
2.3 The concept of complementarity
2.3.2 The complementarity regime of the ICC
The Preamble to the Rome Statute and article 1 provide that the ICC “shall be complementary to national criminal jurisdiction”. Under this regime, the jurisdiction of the ICC is only secondary to domestic courts.324 States retain their right to investigate and prosecute offences over which they have jurisdiction;325 only where the national investigation or prosecution is clearly not genuine, can the ICC intervene and takeover a case.326 To this effect, article 17(1)(a) provides that a case shall not be admissible before the ICC if:
[T]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.
This means that if a State has initiated investigations with regard to a person sought by the ICC, that State has the right to ask the ICC Prosecutor to restrain his competence in favour of the jurisdiction of the State.327
With regard to completed trials, it is also provided that the ICC may not hear such cases where the person concerned has already been tried for the same conduct by a national court,328 unless the national proceedings:329
322 Stigen The Principle of Complementarity 5 and Zeidy 2002 Michigan Journal of International Law 870
323 Stigen The Principle of Complementarity 5.
324 Van Sliedregt and Stoitchkova “International criminal law” 257.
325 Dugard International Law 192.
326 Schoenbaum International Relations 294.
327 Radosavljevic 2007 Review of International Law and Politics 98; Burke-White 2005 Leiden Journal of International Law 557; Cassese 1999 European Journal of International Criminal Law 158 and Farbstein “The Issue of Complementarity” 52. Investigation in this context signifies “the taking of steps directed at ascertaining whether this individual is responsible for that conduct, for instance by interviewing witnesses or suspects, collecting documentary evidence, or carrying out forensic analyses”. The Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute ICC-01/09- 02/11-96 (30 May 2011) para I (1).
(a) [W]ere for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
(b) [O]therwise were not conducted independently or impartially in accordance with 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.
The rules governing complementarity with regard to ongoing investigations (and prosecutions) and complementarity with respect to completed trials are discussed in greater detail below.
2.3.2.1 Complementarity and ongoing investigations and prosecutions
Under article 17(1) a case is not admissible before the ICC, if the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. It is therefore important to define and clarify the concepts of unwillingness and inability to genuinely investigate and prosecute.
2.1.1.1.7 Unwillingness to investigate and prosecute
The Rome Statute330 lists three factors for the determination of an “unwillingness” to investigate or prosecute: shielding a person from criminal responsibility, unjustified delay in the proceedings which is inconsistent with the intent to bring the person to justice and proceedings not conducted independently or impartially and in a manner inconsistent with bringing the person concerned to justice.
All the above criteria to determine unwillingness are subjective; they all refer to situations where a country is purposely “shielding” a suspect from responsibility for a crime over which the ICC has jurisdiction.331 This may be the result of the fact that government officials or their allies are involved in the crimes.332 For example, the situation in the former Yugoslavia following the ethnic cleansing in the early 1990s was
328 Art 20(2) Rome Statute.
329 Art 20(3) Rome Statute.
330 Article 17(2) Rome Statute.
331 Dugard International Law 192; Gioia 2006 Leiden Journal of International Law 1110 and Philippe 2006 International Review of the Red Cross 383: “Unwillingness [means] a state’s lack of a positive attitude towards prosecuting and trying perpetrators of international crimes”.
332 Stigen The Principle of Complementarity 1.
that although the Yugoslav government of that time had the necessary legislation as well as a functioning police and judiciary, it lacked the will to prosecute the criminals.333 Unwillingness would also be asserted when criminal leaders grant amnesty for themselves or their political allies.334 The amnesty law in Chile335 under the regime of Augusto Pinochet is a good example of this scenario. This amnesty law was intended to block prosecution of all persons, including President Pinochet himself, who took part in politically motivated criminal acts committed during the period between 1973 and 1978.336
However, being unwilling does not necessarily imply that the actors are motivated by self-interest. The criterion would also cover situations where the State seeks to shield the perpetrators of international crimes for motives that are morally acceptable.337 For example, the State might reasonably fear that a genuine prosecution will cause instability.338 Likewise, a new democratic regime may shy away from prosecuting members of the former regime in an attempt to ensure a non-violent transfer of power.339 A practical situation that features prominently in this later case is the South African TRC’s amnesty process: without amnesties, the Apartheid government would not have accepted to relinquish power and, consequently, the present constitutional State would not have been in place.340 A question that arises in situations such as this, however, is whether such amnesties should or should not be recognised by foreign States when they relate to gross violations of human rights, over which all States have universal jurisdiction? This question will be discussed in chapter four of this study.
2.1.1.1.8 Inability to investigate and prosecute
Even if a State is willing to bring a perpetrator of crimes to justice and in good faith initiates criminal proceedings against him, the State might lack the ability to proceed in
333 Stigen The Principle of Complementarity 1.
334 Naqvi 2003 International Review of the Red Cross 593; Philippe 2006 International Review of the Red Cross 383 and Zeidy 2002 Michigan Journal of International Law 940.
335 Decree Law No 2191 (Official Gazette No 30 042 of 19 April 1978).
336 Snyder 1995 http://cyber.law.harvard.edu/evidence99/pinochet/HistoryGeneralArticle.htm 337 Stigen The Principle of Complementarity 251.
338 Stigen The Principle of Complementarity 251.
339 Stigen The Principle of Complementarity 1.
340 Varushka The Truth and Reconciliation Commission 1.
an adequate manner.341 According to the Rome Statute, in order to determine inability in a particular case, the Court must consider whether:
due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.342
The concept of inability is thus a fact-driven situation.343 It may entail the physical collapse of the judicial system (no more structures) or the intellectual collapse thereof (lack of sufficient judicial personnel), for example, as the result of a devastating conflict.344 It may also entail a situation in which, owing to the large number of suspects, the conduct and conclusion of all the trials is impossible.345
A country will thus be seen as “unable” if its judicial system has collapsed to the extent that it cannot adequately investigate and prosecute gross violations of human rights.346 For instance, the situation in Rwanda after the 1994 genocide was that the new government was willing to prosecute the persons responsible of the genocide, but the genocide had led to a collapse of the judicial machinery, rendering the new government unable to proceed adequately.347
Furthermore, a State will be seen as unable if the domestic law does not allow for the prosecution of the ICC crimes in its courts. For example, some of the ICC crimes are very specific to the Rome Statute and might not have corresponding provisions at all in ordinary criminal law without a specific legislation implementing the Statute in the internal legal system. In this case the legal system of the relevant State will be seen as
“unavailable”.348 This may be the case, for instance, with the prohibition of “imposing measures intended to prevent births”.349 It is highly unlikely that a seminal crime can be found in an ordinary law of a State which is not related to international criminal law. In addition, even if a State has criminalized a conduct as such, other legal provisions such
341 Stigen The Principle of Complementarity 313 and Philippe 2006 International Review of the Red Cross 383.
342 Art 17(3) Rome Statute.
343 Philippe 2006 International Review of the Red Cross 383 and Gioia 2006 Leiden Journal of International Law 1106.
344 Stigen The Principle of Complementarity 1.
345 Philippe 2006 International Review of the Red Cross 383.
346 Dugard International Law 192. See also Ofei The International Criminal Court 10.
347 Gioia 2006 Leiden Journal of International Law 1116 and Stigen The Principle of Complementarity 1.
348 Stigen The Principle of Complementarity 322.
349 Article 6(d) Rome Statute.
as statutes of limitation, or provisions granting immunity might well hinder the exercise of jurisdiction.350 In that case the result would be the “unavailability” of the national judicial system for the purpose of article 17(3): although the relevant law exists, it cannot be applied.351
2.3.2.2 Complementarity and completed trials: the ne bis in idem rule
The complementarity regime of the Rome Statute is also intertwined with the ne bis in idem rule which is found in many domestic laws.352 The Statute recognises that when a person has already been tried by a national court he may not be tried for a second time for the same crime before the ICC.353
However, in order to ensure that national trials should not be used as a means to shield perpetrators of international crimes from being tried by the ICC,354 the Rome Statute provides that a person who has been tried by a national court for a crime under the jurisdiction of the ICC may be retried by the Court with respect to the same conduct, if it is established that the proceedings at the national level:355
[W]ere for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
[…] were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
Thus, in accordance with the principle of complementarity, a judgment of a national court bars a prosecution by the ICC except in the case of sham proceedings.356 In contrast to the parallel “unwilling” or “unable” standard applicable to ongoing investigations or prosecutions by States, the provisions on completed trials relate solely to the “unwilling” criterion.357 Here, the domestic courts were able to handle the trial but deliberately conducted sham trials to circumvent the ends of justice.358
350 Stigen The Principle of Complementarity 322.
351 Ofei The International Criminal Court 11 and Stigen The Principle of Complementarity 322.
352 Khen Date Unknown http://www.alma-ihl.org/opeds/hillyme-nonbisinidem 353 Zeidy 2002 Michigan Journal of International Law 930-931.
354 Philippe 2006 International Review of the Red Cross 384.
355 Art 20(3) Rome Statute.
356 Zeidy 2002 Michigan Journal of International Law 931.
357 Zeidy 2002 Michigan Journal of International Law 931.
358 Newton 2001 Military Law Review 59 and Zeidy 2002 Michigan Journal of International Law 931.
As stated earlier,359 the complementarity provisions of the Rome Statute reflect a balance between the requirements of international criminal justice and the sovereignty of States. If any national proceeding were to pre-empt ICC interference, States could too easily circumvent justice by conducting sham trials.360 On the other hand, if the ICC were authorised to interfere vis-à-vis any national proceedings, regardless of whether such proceedings were genuine or not, sovereignty would have been unduly impaired.361 The concept of State sovereignty is discussed immediately hereunder.