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  • Online publication date: November 2014

29 - Positive complementarity in practice

from PART V - Complementarity in perspective

The principle of positive complementarity foresees a coordinated approach to the prosecution of crimes by the International Criminal Court (‘ICC’) and national authorities. The ICC Prosecutor has pointed towards a two-tiered policy to combat impunity. On the one hand, the Court will initiate prosecutions against persons who bear the most responsibility for the crimes under investigation. On the other hand, the ICC will encourage national trials, where possible, for the lower-ranking perpetrators. The concrete implementation of the positive complementarity regime will, in many cases, entail the use and admission of information and evidence collected by the ICC before national courts.

Under the International Criminal Tribunal for the former Yugoslavia (‘ICTY's’) Rule 11bis the principle of classical complementarity enshrined in the Rome Statute is reversed. The Referral Bench of the ICTY tests the adequacy of national systems to determine if cases are transferable to national courts for trial rather than deciding if they are admissible before the Tribunal. Since 2005, the ICTY has transferred six cases under Rule11bis to the Bosnian War Crimes Chamber for trial. The use of evidence collected by the ICTY in the Srebrenica trials before the War Crimes Chamber has proven invaluable to the success of the national proceedings and is an example of positive complementarity in practice. The challenges to the admissibility of the ICTY's evidence in proceedings before the War Crimes Chamber will be examined to highlight the lessons learnt from the Bosnian process. In addition, the Law on the Transfer of Cases from the ICTY to the Prosecutor's Office of BiH and the Use of Evidence collected by the ICTY in Proceedings before the Courts in BiH will be analysed as a model national legal framework for the implementation of a ‘reverse’ cooperation regime as foreseen under Article 93(10) of the Rome Statute.

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The International Criminal Court and Complementarity
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Cassese, A., International Criminal Law (2003), 349
See The Report of the Secretary General Pursuant to Paragraph 2 of Security Council Res. 808, UN Doc. S/25704 (1993), para. 65. For ICTY's concurrent jurisdiction with and primacy over the national courts see ICTY Statute, supra note 1, Art. 9
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Burke-White, W., ‘Complementarity in Practice: The International Criminal Court as Part of a System of Multilevel Global Governance in the Democratic Republic of Congo’, (2004) 18 LJIL 557
Prosecutor v. Ratko Mladić (Second Amended Indictment, Case No. IT-09-92-I, 1 June 2011)
Stahn, C., ‘Complementarity: A Tale of Two Notions’, (2008) 19 Crim. L.F. 87
El Zeidy, M., ‘From Primacy to Complementarity and Backwards: (Re)-Visiting Rule 11bis of the ad hoc Tribunals’ (2008) 57 ICLQ 403, 405–6
El Zeidy argues that the Tribunal's practice has shaped at least three distinct models of complementarity that may stand alongside the current 1998 Rome Statute model. The first model presented is derived from the ICTY's practice of deferring jurisdiction to the national courts on the basis of a division of labour exercised within the framework of the discretionary powers of the Prosecutor. Second, there is the Rule 11bis model which the author compares to the Nuremberg International Military Tribunal strategy and highlights that the Rule reflects a new angle in the understanding of primacy and complementarity
Lauth, M., ‘Ten years after Dayton: War Crimes prosecutions in Bosnia and Herzegovina’, (2005) 16 Helsinki Monitor 253, 258
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See The General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 4, Article II, ‘Human Rights and Fundamental Freedoms’, 14 December 1995 initialled in Dayton, Ohio, 21 November 1995, in (1996) 35 ILM 75
Council of Europe, ‘European Convention for the Protection of Human Rights and Fundamental Freedoms’, (1950) 213 UNTS 222
See Organisation for Security and Co-operation in Europe (‘OSCE’) Mission to Bosnia-Herzegovina, War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina: Progress and Obstacles (2005), 31
The argument that the ICTY's evidence was ipso facto admissible before Bosnian courts was discussed in the context of cooperation mechanisms. International cooperation mechanisms in criminal matters recognize the principle of mutual recognition between states. The principle is found in the European Convention on the International Validity of Criminal Judgments (1970). Article 26 of the European Convention on the Transfer of Proceedings in Criminal Matters (1972) provides ‘Any act with a view to proceedings, taken in the requesting State in accordance with its law and regulations, shall have the same validity in the requested State as if it had been taken by the authorities of that State, provided that assimilation does not give such act a greater evidential weight than it has in the requesting State’
Doorson v. The Netherlands, ECtHR (Judgment, 26 April 1996)
Kostovski v. The Netherlands, ECtHR (Judgment, 20 November 1989)
Saunders v. United Kingdom, ECtHR (Judgment, 17 December 1996)
John Murray v. United Kingdom, ECtHR (Judgment of 8 February 1996)
Haynes, D. F. (ed.), Deconstructing the Reconstruction: Human Rights and Rule of Law in Postwar Bosnia and Herzegovina (2008), 257
Human Rights Watch, Narrowing the Impunity Gap Trials before Bosnia's War Crimes Chamber (2007)