On the Principle of Complementarity in the Rome Statute of the International Criminal Court

Abstract

The Rome Statute of the International Criminal Court (the Rome Statute or the Statute) entered into force on 1 July 2002, with the satisfaction of Article 126 of the Statute. Up until 24 September 2004, 139 States have signed the Statute and 97 States have become the Parties. Under such circumstances, China, as one of the permanent members of the Security Council of the United Nations and a non-party State playing a great role in international affairs, needs to acquire a better understanding and also makes a detailed study on the Statute. One of the most unique characters of the International Criminal Court (the ICC or the Court)—as reflected in the principle of complentarity—will be discussed and analysed in the following essay. I. The meaning and the roles of the principle of complementarity Paragraph 10 of the preamble of the Rome Statute emphasizes that ‘‘. . . the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions’’; and Article 1 of the Rome Statue provides ‘‘An International Criminal Court is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Chinese Journal of International Law (2005), Vol. 4, No. 1, 121–132 doi:10.1093/chinesejil/jmi014 Associate professor, the International Law Center ( formerly International Law Section of the Law Institute) of the Chinese Academy of Social Sciences. This paper is an expression of the author’s own view and does not represent that of any organizations. 1 Article 126(1) provides that ‘‘This Statute shall enter into force on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations’’. #The Author 2005. Published by Oxford University Press. All rights reserved. by gest on O cber 3, 2012 http://chinexfordjournals.org/ D ow nladed from Statute’’. As the ICC was established through an international treaty—the Rome Statute— and most of the countries in the world involved in its drafting, the Court, on the one hand, has jurisdiction over the core crimes of international concern and, on the other, its power is limited by complementarity, i.e. the national jurisdiction comes first and ICC’s jurisdiction second. In the preamble of the Statute, the States Parties declare that they wish to establish a permanent court ‘‘to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’’ and to ensure ‘‘their effective prosecution by taking measures at the national level and by enhancing international cooperation’’ and that the permanent court ‘‘shall be complementary to national criminal jurisdictions’’ in case trial procedures may not be available or may be ineffective. Thus, the basic idea for the complementarity is to maintain State sovereignty, under which ‘‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’’, to enhance the national jurisdiction over the core crimes prohibited in the Statute, and to perfect a national legal system so as to meet the needs of investigating and prosecuting persons who committed the international crimes listed in the Statute. Since the international criminal institutions and national courts have concurrent jurisdiction over the most serious crimes in violation of international criminal law and humanitarian law, there inevitably will be conflicts between the two jurisdictions. However, no such conflicts would occur in the case of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), as the establishment of the two Tribunals is a measure taken by the Security Council of the UN. The Statutes of the two Tribunals provide that ‘‘the International Tribunal shall have primacy over national courts’’. Whereas the principle of complementary provided in the Rome Statute means that national courts have the priority to exercise jurisdiction over the crimes prohibited in the Statute, i.e. the ICC cannot exercise its jurisdiction over the crimes unless the State concerned is unable or unwilling to investigate or prosecute the crimes. There are four scenarios in accordance with Article 17(1) in which the ICC cannot admit a case: (a) the case is being investigated or prosecuted by a State which has jurisdiction over it; (b) the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned (in these two cases, the ICC has to preclude the possibility that the State is unwilling or unable genuinely to carry out the investigation or prosecution before it can admit the case); (c) the person concerned has already been tried for conduct which is the subject of the complaint (the principle of ne bis in idem); and (d) the case is not of sufficient gravity to justify further action by the Court. Thus, the key consideration for the Court to admit a case is whether a State is unable or unwilling to investigate or 2 Paragraph 5, Preamble of the Rome Statute, A/Conf. 193/9.