Implications of Complementary Jurisdiction on Universal Jurisdiction

Analyse the implications of the principle of complementary jurisdiction in the Statute of the International Criminal Court with special reference to the role of universal jurisdiction in the international justice system.

In this paper, I am considering the implications of the principle of complementary jurisdiction under the Statute of the International Criminal Court (ICC). The focus will be on the new relationship between international jurisdiction and universal jurisdiction created by the Statute. In the preamble and in article 1of the Statute the principle of complimentarity is created and I will analyse the manner in which the state’s universal jurisdiction to prosecute international crimes will be balanced with the international jurisdiction of the ICC.

This paper begins by outlining the principle of complementary jurisdiction as it is applicable under the Rome Statute. It then contrast international jurisdiction with universal jurisdiction as provided for in the preamble The paper will further discuss the current practices and development to the universal jurisdiction, and traces it back to its origin and examine ways in which the permanent international jurisdiction adds to the universal jurisdiction and states the contrast between the two. The next part of the paper comments on the manner in which the ICC could acquire jurisdiction over States, whether they are parties or non-parties to the Rome Statute with reference to Articles from the Statute. Next, this paper reflects on the significance of the complementary jurisdiction of the court as well as the issues involved in “shielding” suspects through state investigations of proceedings. Another section of the paper analyses the manner in which the scope of international jurisdiction of the ICC is by the Rome Statute’s reference to the most serious international crimes. This paper ends by looking again at all the discussions made with reference to actual case studies and opinions of academic experts, and will subsequently conclude on whether the principle of complementary jurisdiction under the Statute of the ICC is able to effectively applied in order to allow the ICC to play an efficient role as the enforcer of international criminal justice.

The ICC was borne to reflect the trend towards the internationalization of individual responsibility for certain heinous crimes in order to bring an end to impunity for such crimes. [1] Under Article 1of the Rome Statute, the Court “shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern.” [2]

International jurisdiction is said to be exercised by an international body where the jurisdiction of such body, for instance, a court of law, is not subject to geographical limitations which usually limits domestic court of laws. Throughout history, we have seen the establishments of courts of international jurisdictions such as the European Court of Human Rights, the International Military Tribunals at Nuremberg and now with the establishment of the International Criminal Court.

In establishing international jurisdiction, a court of law would generally gain recognition and jurisdictional powers which can derive from treaties, special agreements (such as Nuremberg) or from UNSC resolutions a substantive international convention which is binding on States across the world. For instance, the creation of the European Court of Human Rights derives its legitimacy from the signing and ratification of the Rome Treaty as well as the European Convention of Human Rights. Similarly, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda are both international criminal tribunals which were created out of the United Nations Security Council Resolutions. [3]

Under public international law, the principle of universal jurisdiction allows a State to claim criminal jurisdiction over any persons whose alleged crimes has been committed outside the territorial jurisdiction of the prosecuting state. In some cases, such universal jurisdiction is invoked without regards to a need for any relation with the prosecuting state, including nationality or national interest. [4] The rationale for such state interference is on the basis of the seriousness of the crime, which is considered as a “crime against all” and not just towards one set of victims, and hence should be made punishable by any State.

In 1993, Belgium adopted a universal jurisdiction law of universal jurisdiction. Under the law, the courts in Belgium would be able to exercise jurisdiction over the commission of any crime committed anywhere in the world by person of any nationality against the victim of any nationality. An example of this may be the South Africa where where at the end of apartheid period in negotiation between 1990 and 1994, the African national congress and other liberation and the national government parties negotiated and ended the apartheid period. The negotiations resolved that there would be no trails of those who have committed crimes during the apartheid regime necessarily.

In exchange of full public disclosure on amenity commission, public truth and reconciliation process made decisions that whether an individual could be granted amenity from prosecution. Though very few trials took place, most of the people were given amnesty as they felt that if this was not done , it could result in mass scale destruction due to warfare and much more disastrous for the population. This safety measure had resulted in a peaceful transition from a war raging zone to peaceful situation. Under the law, the Belgium authorities could have determined that this process was not prosecution under the Belgium law and that the South Africans could be investigated and prosecuted in other country. They said that South Africans are easily letting people off by giving them amnesty and escape from prosecution.

The doctrine of universal jurisdiction has been consistently questioned because of is the scope of the doctrine be wise and also at what point could that scope interfere with decisions of other sovereign states by imposing its jurisdiction on a state without taking into consideration the sovereignty of such state. It also offers no protective mechanism in that any court of law could be created to try international crimes and to convict “alleged perpetrators” without ensuring the fundamental principles of justice, such as the right to due process and fair trial. Stephen Macedo, in 2006, was particularly could cause problem towards the doctrine, arguing that the idea that universal jurisdiction might be problematic in light of the current transnational criminal justice process which is available, and that “it is no longer fanciful that several courts might assert jurisdiction with respect to the same crime.” [5] According to Macedo, the challenges made to the ICC by some countries’ “efforts to prosecute sound a cautionary note, highlighting the fragility and incompleteness of a global consensus on issues relating to universal jurisdiction”. [6]

Nevertheless, the state has seen a need to address the apparent gap in international criminal justice which had allowed impunity for individual responsibilities of international crimes, and hence various attempts have been developed in order to create legitimacy for the doctrine of universal jurisdiction. According to Reydams, the application of the universal jurisdiction has been brought in order to address the need for an ICC in order to implement justice (prior to the establishment off the ICC in 2002). Accordingly, various nations have developed their own definition of what constitutes universal jurisdiction, which Reydams summed up as constituting of either the a) the co-operative general universality principle; b) the co-operative limited universality principle; or c) the unilateral limited universality principle. [7] According to Reydams, such universality principle could also be found in various international texts, although the effect of these texts has been limited after the implementation of the ICC and when the Rome Statute began to take force under international law. [8]

While the Rome Statute dictates the extent and role played by the ICC in carrying out criminal justice on an international level, the premise of the ICC is based entirely on the principle of complementary jurisdiction. This principle finds its most specific expression under Article 17 of the Rome Statute which has been included within the appendix.

Under the doctrine of complementary jurisdiction, the jurisdiction of the ICC is derived entirely on two documents, the Rome Statute as well as the United Nations Charter. Under the Rome Statute, the territorial jurisdiction of the ICC is dependent on the consent of Member States, shown through Member States’ ratification of the Statute. Outside of this territorial jurisdiction, the ICC would meanwhile only have jurisdiction over non Member State Parties of the Rome Statute, if a situation has been referred to it by the Security Council. On referral by the Security Council, the jurisdiction of the ICC is then derived from the United Nations Charter which is binding on all members of the United Nations.

The effect of Article 17 of the Rome Statute is the recognition by the ICC of the most primary obligation of the States under international criminal law, which is the domestic investigation and prosecution of the most serious international crimes. The Article effectively shifts the burden of such prosecution to the state and compels them to act to address such crimes in order to prevent the intervention from the International Criminal Court. Hence, under the principle of complementarity articulated under Article 17, jurisdiction of the court opens up only where the case have not been brought into investigation by the state, including where the state is considered to be unable or unwilling to prosecute such a case.

The effective result of the principle of complementarity is thus the establishment of co-operation between the Member States signatory to the Rome Statute and the International Criminal Court. This cooperation is particularly stressed by the words of the Chief Prosecutor of the International Criminal Court, Luis Moreno Ocampo, who, in assuring of the continued respect of national jurisdictions by the Court, stated that “the absence of trials before this Court as a consequence of the regular functioning of national institutions would be a major success.” [9]

The establishment of the doctrine of complementary jurisdiction hence effectively entrenches the recognition of international law towards the sovereignty of a state with respect to international crimes. The Rome Statute goes further to address such recognition of a State’s sovereignty by providing that the obligation to prosecute must first lie towards the State, failing which, either due to inability or unwillingness, the ICC would interfere and bring proceedings to the Court.

Nevertheless it is necessary to consider whether the doctrine of complementary jurisdiction by the ICC is perfectly capable of balancing the interest of justice and the sovereignty of a state. According to Kleffner, the effect of the complementarity jurisdiction is has two questions which must be answered, firstly whether the legal framework of complementarity under the Rome Statute could “accommodate proceedings carried out by non-state organized armed groups in as much as they could potentially constitute a bar to the admissibility of cases before the ICC”, and secondly, whether “it would be a wise policy choice for the prosecutor to dismiss all criminal proceedings by non-state organized armed groups when exercising the discretion granted by Article 53 of the Statute”. [10]

This issue shall be considered in the next section by assessing the manner in which the ICC acquires jurisdiction over State Parties and non-State Parties of the Rome Statute. The prima facie jurisdiction of an ICC over a conflict is threefold, that is, the case must comply with a) the temporal jurisdiction; b) the subject matter jurisdiction; and c) the territorial jurisdiction of the Court. [11]

With regards to its temporal jurisdiction, the ICC can only prosecute crimes which are committed on or after the 1st of July 2002, the date at which the Rome Statute came into force. However, the ICC must also take into account the date which the State Members ratify the Rome Statute, as jurisdiction of the ICC with regards to that particular state will only arise then.

With regards to its subject matter jurisdiction, under Article 5 of the Rome Statute, the ICC have jurisdiction over four groups of crimes considered as the “most serious crimes of concern to the international community as a whole”, that is, a) genocide; b) crimes against humanity; c) war crimes; and d) crimes of aggression. [12] At present, the ICC have jurisdiction over three of the groups of crimes, as the court would not exercise its jurisdiction over any crimes of aggression until a definition have been reached along with State Parties to the Rome Statute.

With regards to its territorial jurisdiction, the ICC only have jurisdiction over states which have signed and ratified the Rome Statute. At present, only 111 states are parties of the ICC whom the Court will have territorial jurisdiction over, although there are a further 38 countries who, although have not yet ratified the Rome Statute, had nevertheless signed the Statute. [13]

This territorial jurisdiction has proven to be one of the most challenging obstacles of the court, since in theoretical and practical terms, a state need only refuse to opt into the Rome Statute to be immune to the crimes under the Court’s jurisdiction. For instance, China, India, Russia as well as the United States are all outside of the jurisdiction of the Court and hence could commit international crimes without worrying about the Court’s interference. Because of this, the Rome Statute has created an exception to its jurisdiction limits where a situation has been specifically referred to the ICC through the United Nations Security Council, under Article 12 and 13 of the Rome Statute. Similarly, the Prosecutor could initiate an investigation propio motu under Article 15 of the Rome Statute.

Having established the prima facie jurisdiction of the court, the principle of complementary jurisdiction must now be taken into consideration, where the Court will first and foremost look into any State actions against the accused. This is because the Court is considered as a court of last resort, whose jurisdiction would only be invoked if it is shown that the State is unwilling or unable to prosecute with regards to the case.

Although the definition of unable is not determined, nevertheless under Article 17(3) of the Rome statute, it is stated that in order to “determine inability in a particular case, the Court shall 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.” [14] Meanwhile, Article 17(2) provides that “in order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law.”

Even if a case has sufficiently qualified under all the jurisdictional framework as established under the Rome Statute, it must nevertheless be noted that Article 53 of the Statute allows for the Prosecutor of the ICC to exercise its discretion as to which cases which will be brought under the power of the Court, if it is believed that “an investigation would not serve the interests of justice.” [15] Similarly, the Security Council could also prevent the ICC from proceeding to investigate or prosecute a case, under Article 16 of the Rome Statute.

The effect of the principle of complementary jurisdiction as exercised by the ICC must also be considered in terms of practical terms and not just based on a reflection of academic texts and wordings of the Rome Statute. This is because there are various questions which may arise which have not yet been jurisprudentially established under international law. An example would be what constitutes inability or unwillingness of the courts to prosecute which would invoke the jurisdiction of the Court? Despite the explanation provided under the Rome Statute, its practical application is less clear.

An illustration of the disagreement between scholars with regards to what invokes the jurisdiction of the court could be seen in the argument of due process. Could the ICC exert its jurisdiction over a State if the State does not provide, or will not provide a defendant it is prosecuting with the due process which is considered as the human rights of a defendant? Although previously scholars have reached a consensus over the issue that a lack of due process could be ground for the Court’s jurisdiction, nevertheless Heller noted that on the basis of the words of the Rome Statute, it would seem that the due process thesis could not be applicable under the principle of complementary jurisdiction as under the Rome Statute. This is because according to Heller, the ICC should only be able to exercise jurisdiction over a case if the State’s substantive law deficiencies are beneficial to the defendant and makes it easier for an alleged perpetrator to evade justice, which is not the case with regards to the due process thesis. [16]

Nevertheless, it must be noted that the ICC in its investigations over Darfur, on taking into question the issue of whether Sudan was “unable or unwilling to prosecute and try the alleged offenders”, was of the opinion that its intervention provides for a “fair trial guarantees offered by the international composition of the Court and by its rules of procedure and evidence”.

Another question which arises is whether a State could effectively make use of the principle of complementarity in order to protect its own national interest by shielding its nationals from international proceedings through conducting national proceedings to prosecute these crimes. An illustration can be seen in the Colombian peace process as regulated under Ley de Justicia y Paz, Law 975 of 2005, where the national peace process effectively allows for the granting of amnesty in favour of human rights abuse perpetrators in order to bring peace towards the country. [17]

According to the Black’s Law Dictionary, amnesty is the “act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet been convicted.” [18]   It must be noted that with regards to any reconciliation processes which may grant amnesty, Philippe Kirsch, the former President of the ICC have stated that “some limited amnesties” could be compatible with a country’s obligations where the country have genuinely sought to investigate and prosecute such crimes. [19] Nevertheless, according to the International Committee of the Red Cross and the United Nations, granting of amnesties constitute a breach of international law and hence should not deny the jurisdiction of the International Criminal Court.

According to Carsten Stahn, there are three principal situations of which the Chambers of the ICC may “have to deal with the issues of amnesties and pardons” in accordance with the Rome Statute. This is with regards to a) Article 53(3) which allows a Prosecutor the discretion not to initiate an investigation or prosecution; b) in the “context of a ruling on admissibility under Article 18 and 19″; as well as c) in the “case of a deferral of the investigation or prosecution under Article 16 upon request by the Security Council.”

Further, according to Stahn, there are four different guidelines for the treatment of the Court towards the issues of amnesties and pardons. The first is that the court could consider itself as having the judicial autonomy to decide whether “an amnesty, a pardon or other alternative forms of justice are permissible under the Statute”. This is on the basis of Article 17 and 19 of the Rome Statute which empowers the Court to determine the jurisdiction and admissibility of a case brought before the Court.

The second guideline is that the Court may consider that “exemptions from criminal responsibility for the Crimes within the Jurisdiction of the court by amnesties or pardons” to be generally incompatible with the wordings off the Rome Statute. [20] This is on the basis of recent support that amnesties for core crimes of the ICC could not be compatible with international law. For instance, Principle 7 of the Princeton Principles of Universal Jurisdiction sets out that “amnesties are generally inconsistent with the obligation of states to provide accountability for serious crimes under international law, including war crimes, crimes against humanity and genocide.” [21] Similarly, under section 2 of the United Nations Commission on Human Rights Resolution 2002/79, it is stated that the United Nations “recognizes that amnesties should not be granted to those who commit violations of international humanitarian and human rights law that constitute serious crimes.” [22]

This particular approach would be more suitable than the first approach if it is seen from the perspectives of the Preamble of the Rome Statute which provides that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” The third guideline provides that amnesty and pardons may be available in order to limit the prosecution by the States and by the Court only to the most serious and most responsible perpetrators of the crime. This is referred to Stahn as the principle of “targeted prosecution”. The fourth and final guideline available to address amnesties and pardons are by allowing and permitting amnesties or pardons only in exceptional cases, such as where they are conditional and accompanied by alternative forms of justice.

Taking these possible approaches and guidelines into consideration, it must nevertheless be kept in mind that state practice have generally shown a trend towards the non-recognition and prohibition of amnesties especially where it relates to international crimes. For instance, Article 23 of the Constitution of Ecuador provides that “amnesty could not be granted for genocide, torture, forced disappearance, hostage-taking and politically motivated murder.” [23] In 2001, the Due Obedience and Full Stop Laws which prevented Argentina from investigating serious crimes were held by the Argentinean Federal Court of Appeals as being unconstitutional and void, in the case of Simon Julio. [24] In 2000, the Supreme Court of Justice in Honduras similarly found that granting amnesty towards military personnel charged with human rights violations to be unconstitutional. [25] The Spanish courts have also ruled that foreign amnesty clauses could not have extraterritorial effect and hence the amnesty provided by Argentinean law could not be binding against Spain. [26]

Despite these arguments, it is to be acknowledged that the prohibition or admissibility of amnesties or pardons under international law has yet to be jurisprudentially established. This lack of clarity is strengthened by the words of Antonio Cassese, who stated that “there is not yet any general obligation for States to refrain from enacting amnesty laws for these crimes. Consequently, if a State passes any such law, it does not breach a customary rule. Nonetheless, if the courts of another State having in custody persons accused of international crimes decide to prosecute them although in their national State they would benefit from an amnesty law, such courts would not thereby act contrary to general international law, in particular to the principle of respect for the sovereignty of other States.” [27]

The scope of the jurisdiction of the ICC only to address the most serious and responsible perpetrators the crime could be used to address why the jurisdiction of the ICC seems limited.

Looking at the issues from this perspectives, it could then be argued that the national domestic process could shield other less serious perpetrators in order to bring the most serious once to justice, and where that fails under national proceedings, to bring up the case under international law through the International Criminal Court.

According to Article 17, the gravity of the conduct must be taken into consideration in assessing the admissibility of a case before the Court, and hence, in practical effects, the Court have mostly only concern itself with the prosecution of planners, leaders as well as persons who have committed the most serious crimes in breach of the Rome Statute.

This limitation only to the most serious crimes could also be looked from the previous practices of international criminal tribunals. For instance, the jurisdiction of the “ad hoc tribunals is limited to the prosecution of the most serious crimes”. Although academically speaking, the term “most serious crimes” does not limit prosecution only towards the most responsible persons, it has generally begun to move towards this direction, putting accountability towards leaders and not against lesser perpetrators. [28] For example, Article 1 of the Statute of the Special Court for Sierra Leone limits the competence of the Court only to “persons who bear the greatest responsibility for serious violations”. [29]

It is because of this targeted approach by previous criminal tribunals with international jurisdiction which sees the ICC basing its assessment of the admissibility and subsequent charge against perpetrators only towards those most responsible for the conflict. Hence, in cases of exemptions through amnesties or pardons, the ICC should only take such amnesties or pardons should such amnesties and pardons apply against those who, although are responsible for the conflict, are however not primarily responsible . However, where the persons which are being shielded is considered to be primarily responsible, it is submitted by this paper that the court should consider such an approach as a breach of international law, deeming such States as unwilling to prosecute such cases and hence invoking the jurisdiction of the court.

It is worth spending an additional section in order to ponder on the effects of the principle of complementary jurisdiction and its practical application with regards to the International Criminal Court. This method of jurisdictional exercise sees the ICC in its initial growth actively refuse to exercise its powers outside the scope of its territorial jurisdiction and even within its territorial jurisdiction despite the propio motu powers of its Prosecutor, [30] which has resulted in three out of the first four investigations carried out by the ICC caused only through the referral of the conflict to the ICC by the respective State government. [31]

Nevertheless we have to consider the recent developments with regards to the extension of jurisdiction of the International Criminal Court. The first is the attempt to bring the ICC into jurisdiction by the Palestinian National Authority through its Article 12 declarations. [32] Could such declaration be considered as a breach of the International’s Criminal Court not to encroach state sovereignty and uphold the principle of complementary jurisdiction? At present, the international law point of view is unclear although the declaration have itself received predictable criticism and attack from Israel, who argues that such declaration could only be made by a State under international law, of which Palestine is not. [33]

The second development which must be considered is the charge and arrest warrant made against Omar Al-Bashir, President of Sudan. Sudan itself is not within the territorial jurisdiction of the ICC(which dictates territorial jurisdiction extends only towards State Parties of the International Criminal Court), nevertheless under the powers granted it is ab