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  • Cited by 2
  • Online publication date: November 2014

3 - Proactive complementarity: a Registrar's perspective and plans

from PART I - General reflections

Summary

This contribution highlights the importance of a proactive approach to enhancing the capacity of national jurisdictions to prosecute Rome Statute crimes, an approach which may be named ‘proactive complementarity’. Such an approach facilitates a constructive interplay between national and international jurisdictions. Many players have a responsibility to assist in this process, which is traditionally at the heart of bilateral and multilateral donor activity. The International Criminal Court, with its strictly judicial mandate, can only have a small, lateral role in building national capacities. Nevertheless, each organ of the International Criminal Court can play a role. This chapter sets out a number of creative initiatives that the Registry of the Court can undertake to boost national capacity, focusing on the core Registry competence of organizing and running fair trials.

Introduction

The principle of complementarity is fundamental to the architecture of the Rome Statute of the International Criminal Court (ICC), and reflects a balance between national sovereignty and the interests of the international community in combating impunity for international crimes. The primacy of national over international jurisdictions has a long history and is one of the cornerstones of state sovereignty. Many of the international conventions that form a basis for international justice, such as the Genocide Convention or the Geneva Conventions, place duties on states and empower them to assert jurisdiction over breaches. Of course, the ad hoc tribunals created by the Security Council were exceptions to this general trend, but they were geographically and time bound, and such primacy was interpreted narrowly by many members of the Security Council. The complementarity regime of the ICC ensured that the many states that wanted to re-affirm the principle of national sovereignty and the corollary primacy of national proceedings would yet be willing to accept the creation of an international jurisdiction to try international crimes under certain conditions.

Akhavan, P., ‘The Lord's Resistance Army Case: Uganda's Submission of the First State Referral to the International Criminal Court’ (2005) 99 Am. J Int'l L 403, 413
Burke-White, W. W., ‘Proactive Complementarity: the International Criminal Court and National Courts in the Rome System of International Justice’ (2008) 49 Harv. Int'l LJ53
Stahn, C.,‘Complementarity: A Tale of Two Notions’ (2008) 19 Crim. LF87
See Report of the Bureau on Stocktaking: Complementarity, Taking Stock of the Principle of Complementarity: Bridging the Impunity Gap, ICC-ASP/8/51 (18 March 2010)
Almqvist, J., ‘Complementarity and Human Rights: a Litmus Test for the International Criminal Court’ (2008) 30 Loy. LA Int'l and Comp. L Rev. 335, 347–56
Perrin, B., ‘Making Sense of Complementarity: the Relationship Between the International Criminal Court and National Jurisdictions’ (2006) 18 Sri Lanka J Int'l L 301, 318