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  • Cited by 1
  • Online publication date: November 2014

9 - Taking complementarity seriously

from PART III - Analytical dimensions of complementarity

Summary

Complementarity has many faces. Today, it is traditionally theorized on the basis of a distinction between ‘classical’ and ‘positive complementarity’. This chapter revisits this categorization. It argues that both conceptions are inherent in the framework of the Rome Statute, but underdeveloped in their articulation and meaning due to the framing of Article 17. Both concepts are often misunderstood or used in order to justify specific policy choices. This chapter argues that forum allocation is governed by three cardinal principles which underpin the functioning of the Rome system of justice: (i) effectivenes, (ii) impartiality and (iii) fairness. It defines means and methods of ‘classical’ complementarity, including its use as a carrot and stick. It challenges the assumption that ‘positive’ complementarity is merely a policy principle or a tool to strengthen domestic jurisdiction. It argues that the ICC is empowered to use techniques to overcome ‘inability’ and ‘unwillingness’ as part of its mandate. It claims that the move from a passive to a managerial understanding of complementarity requires greater attention to the foundational goals of the Court, i.e. judicial independence, effective justice, fairness and sustainability.

Introduction

The concept of complementarity has undergone significant transformation in international criminal justice. In the ad hoc tribunals, the virtue of complementarity was largely revealed as a byproduct of judicial activity. It is inherent in the referral mechanism under Rule 11bis which was introduced as part of the completion strategy. In this context, i.e. the process of transfer of cases to national jurisdictions, complementarity has become a ‘main priority’ for the tribunals. Under the Rome Statute, complementarity is not only a technical concept, but a systemic feature of the International Criminal Court (ICC). It marks the very foundation of a new system of justice. Its potential to create a broader culture of accountability and prevention of mass atrocity crimes constitutes one of the prerequisites for the long-term impact and success of the ICC.

El Zeidy, M. M., ‘From Primacy to Complementarity and Backwards: (Re)-Visiting Rule 11bis of the Ad Hoc Tribunals’ (2008) 57 ICLQ403
Stahn, C. and Sluiter, G., The Emerging Practice of the International Criminal Court (2009) 135
See Office of the Prosecutor (OTP), Prosecutorial Strategy 2009–2012, 21 December 2009, paras. 81–82. See also ICC Assembly of States Parties (ASP), 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) para. 3 (‘Rome system of international criminal justice’); OTP, Draft Policy Paper on Preliminary Examinations (4 October 2010) para. 21
Moreno-Ocampo, Luis and Méndez, Juan E., , ‘Justice and Prevention’. In his Report Implementing the Responsibility to Protect (R2P), the Secetrary-General identified complementarity as a key instrument for the operationalization of the ‘protection responsibilities of the state’ under the R2P doctrine. See Report of the Secretary-General, Implementing the Responsibility to Protect, UN Doc. A/63/677 (12 January 2009) paras. 18 and 19
Gioia, F., ‘State Sovereignty, Jurisdiction and “Modern” International Law: the Principle of Complementarity in the International Criminal Court’ (2006) 19 LJIL1095
Cassese, A., Gaeta, P. and Jones, J., The Rome Statute of the International Criminal Court (2002) vol. I, 667
In particular, the OTP has placed strong emphasis on the idea of dialogue and partnership with domestic jurisdictions in order to enhance cooperation. See OTP, Report on the Activities Performed During the First Three Years (June 2003–June 2006) (12 September 2006) paras. 2 and 58
Denmark and South Africa, Bridging the Impunity Gap Through Positive Complementarity (6 November 2009) para. 24
Benzing, M., ‘The Complementarity Regime of the International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight against Impunity’ (2003) 7 Max Planck Yearbook of United Nations Law 591, 599
Kleffner, J. K., Complementarity in the Rome Statute and Domestic Jurisdictions (2009x) 249
Stahn, C., ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm’ (2007) 101 AJIL99
Triffterer, O., Commentary on the Rome Statute of the International Criminal Court (2008) 1078
OTP, Informal Expert Paper on the Principle of Complementarity in Practice (2003), Annex, available at . For inability, see ibid. para. 49 and Annex. For unwillingness, see ibid. para. 47
El Zeidy, M. M., The Principle of Complementarity in International Criminal Law (2008) 288–93
Triffterer, O., Commentary on the Rome Statute of the International Criminal Court (2008) 692, n. 129
Schabas, W., ‘Prosecutorial Discretion v. Judicial Activism in the International Criminal Court’ (2008) 6 JICJ 731, 747
No detailed treatment was offered in Katanga (Pre-trial Chamber I, Prosecutor v. Germain Katanga, Warrant of Arrest for Germain Katanga, 2 July 2007); Harun (Pre-trial Chamber I, Prosecutor v. Ahmad Muhammad Harun, Warrant of Arrest for Ahmad Harun, 27 April 2007); Bemba (Pre-trial Chamber III, Prosecutor v. Jean-Pierre Bemba Gombo, Warrant of Arrest for Jean-Pierre Bemba Gombo, 23 May 2008)
See OTP, Criteria for Selection of Situations and Cases (June 2006) 5–6 (‘The OTP position is that these factors should be considered jointly: no fixed weight should be assigned to the criteria, but rather a judgment will have to be reached on the facts and circumstances of each situation’). See also OTP Draft Policy Paper on Preliminary Examinations, supra note 3, paras. 67–70
Stahn, C. and Sluiter, G. (eds.), The Emerging Practice of the International Criminal Court (2009) 247–79
See OTP, Criteria for Selection of Situations and Cases (June 2006) 2. See also OTP Draft Policy Paper on Preliminary Examinations, supra note 3, para. 34 (‘shall not be altered by the presumed or known wishes of any party or by the cooperation seeking process’)
Carnero Rojo, E., ‘The Role of Fair Trial Considerations in the Complementarity Regime of the International Criminal Court: From “No Peace Without Justice” to “No Peace Without Victor's Justice”?’ (2005) 18 LJIL 829, 840–56
Kleffner, J. and Kor, G. (eds.), Complementary Views on Complementarity (2006) 112
Stahn, C. and Sluiter, G., The Emerging Practice of the International Criminal Court (2009) 285–304
Stahn, C., El Zeidy, M. and Olásolo, H., ‘The International Criminal Court's Ad Hoc Jurisdiction Revisited’ (2005) 99 AJIL 421, 423
Sluiter, G., International Criminal Adjudication and the Collection of Evidence: Obligations of States (2002) 85–6
Kleffner, J., ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’ (2003) 1 JICJ86
Rastan, R., ‘Testing Co-Operation: the International Criminal Court and National Authorities’ (2008) 21 LJIL431
Stahn, C. and Sluiter, G., The Emerging Practice of the International Criminal Court (2009) 725–54
Burke-White, W. W., ‘Proactive Complementarity: the International Criminal Court and National Courts in the Rome System of International Justice’ (2008) 49 Harvard International Law Journal 53, 56
Burke White, W. W., ‘Implementing a Policy of Positive Complementarity in the Rome System of Justice’ (2008) 19 Criminal Law Forum59
Burke-White, supra note 123, at 56–8
See OTP, Report on Prosecutorial Strategy (14 September 2006) 5
Stahn, C., ‘Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the ICC’ (2005) 3 JICJ695
Baylis, E., ‘Reassessing the Role of International Criminal Law: Rebuilding National Courts through Transnational Networks’ (2009) 50 Boston College Law Review1
Gallmetzer, R., ‘Prosecuting Persons Doing Business with Armed Groups in Conflict Areas’ (2010) 8 JICJ 947, 952
Stahn, C. and Sluiter, G., The Emerging Practice of the International Criminal Court (2009) 441, 448–57
Williams, S. A. and Schabas, W., ‘On Article 17’ in Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court, (2nd edn, 2008), 614–16, paras. 23–4
Arsanjani, M. H. and Reisman, W. M., ‘Law-in-Action of the International Criminal Court’ (2005) 99 AJIL385
Bitti, G. and El Zeidy, M. M., ‘The Katanga Trial Chamber Decision: Selected Issues’ (2010) 23 LJIL 319, 328