Complementary Jurisdiction Helps Define the ICC
A Look at the International Criminal Court and National Sovereignty
Oct 7, 2008
One of the possible consequences of conflict and dictatorship can often times be a lack of accountability for war crimes, genocide and crimes against humanity. This situation often arises from a complete breakdown of the national legal systems directly affected. The international community has come together in recent years to try and resolve this issue through the International Criminal Court (ICC). On November 14, 2002, John R. Bolton, then Under Secretary for Arms Control and International Security confirmed that the United States decided that the ICC had unacceptable consequences for American national sovereignty and undermined the American legal system. The US State Department has continued with this policy up to the writing of this article.
Complementary Jurisdiction
The primary legal tool that defines how the ICC interacts with national legal systems is its enjoyment of complementary jurisdiction with them (“Complementarity”). Where domestic systems are unwilling or unable to uphold their obligation to investigate and prosecute those accused of serious crimes under international law; the ICC will assume responsibility for fulfilling that duty on behalf of the international community. The ICC mainly complements national criminal jurisdictions, rather than replacing them.
Complementarity is outlined in the preamble and in articles 1, 17, 18, and 19 of the founding statute for the International Criminal Court. This was a result of a political balancing act between the existence of universal jurisdiction for the crimes under the ICC’s jurisdiction, the practical aspects of having an international court and the independence of national judicial systems, or sovereignty.
Some Precedents
Evidence of an early form of complementary jurisdiction can be traced as far back as 1834 in the case of U.S. v Pedro Gilberto & Others; a case involving piracy. Although universal jurisdiction was applicable and the accused could legally be tried by Britain; it was preferable for the United States, the state most affected, if capable and willing, to try the case. Therefore, the perpetrators where returned to the United States to face prosecution.
Many legal scholars have written about precedents for complementary jurisdiction in past applications of international law. One such scholar is Mohamed El Zaidy, and he states that complementarity is not an entirely new concept and is consistent with the history of repression of crimes against international law. His opinion is in line with the writings of Prof. Cherif Bassiouni, a leading expert on the International Criminal Court.
The theory behind the ICC confirms that it is ultimately up to domestic courts to uphold their responsibility. A somewhat similar relationship emerged in other tribunals established by the international community; and supported by the United States. For example article 9 of the Statute of the International Criminal Tribunal for the Former Yugoslavia establishes what it calls concurrent jurisdiction with national courts. The Statute of the International Criminal Tribunal for Rwanda prescribes the same in its article 8. However, the tribunals have primary jurisdiction over national courts unlike the ICC, which has secondary jurisdiction.
International Perspective
Although these precedents do not demonstrate complementarity itself as it stands today; some experts agree that they show complementary jurisdiction is not as alien a concept as the US State Department has come to perceive it. It is seen to have developed from past experiences, and as a response to the political climate within the international community. Complementarity´s development was also seen as a way to have states implement international law whilst at the same time safeguarding their sovereignty and judicial independence.
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