CIAO DATE: 04/04

The Effectiveness of the Exercise of Jurisdiction by the International Criminal Court: The Issue of Complementarity

Susan Hannah Farbstein

August 2001

European Centre for Minority Issues

Introduction

The prevalence of collective violence and the agony of mass atrocity may prove to be the twentieth century's most distressing and enduring legacies. From Germany to Uganda, from Cambodia to Sierra Leone, from the Former Yugoslavia to Rwanda, the past hundred years are replete with examples of terrifying violations of human rights and humanitarian law committed against diverse groups of people. Limited attempts to unveil the truth about past horrors, to hold individuals responsible, and to deter future offenses have repeatedly proven inadequate. A dearth of satisfactory moral and legal responses to these crimes often left victims suffering without any sense of reconciliation, while perpetrators routinely enjoyed impunity rather than facing justice.

Mass atrocity and violations of human rights present such deliberate and pervasive affronts to human dignity that standard moral assessment and the application of criminal law may seem both inappropriate and inadequate. Hannah Arendt eloquently questioned the possibility of defining the Nazi defendants at Nuremberg as "criminally guilty" because, as she wrote, the crimes seemed to "explode the limits of the law; and that is precisely what constitutes their monstrousness. For these crimes, no punishment is severe enough. It may well be essential to hang Goring, but it is totally inadequate. That is, this guilt, in contrast to all other criminal guilt, oversteps and shatters any and all legal systems." Yet over the past century, the response to war crimes, genocide, and violations of human rights has often been an attempt to prosecute those deemed culpable. In these cases, a desire to protect State sovereignty and national criminal jurisdiction frequently clashed with the impetus to hold genuine international prosecutions. Consequently, although selected perpetrators were tried for their offenses in World Wars I and II, a permanent International Criminal Court was never established. However, with the end of the Cold War and the erosion of State sovereignty, the rapidly changing international environment led to shifts in public opinion and State policy. This facilitated the creation of two ad hoc international tribunals under United Nations auspices to try individuals accused of crimes committed in the Former Yugoslavia and Rwanda. Increasingly, the morally heinous nature of genocide, war crimes, and violations of human rights led the international community to claim a collective right to prosecute the perpetrators. An international system cognizant of a shared interest in seeking justice offered the opportunity to establish a permanent International Criminal Court to prosecute and punish individuals responsible for these atrocious crimes.

This thesis will explore the controversial issue of complementarity and the related tension between the International Criminal Court and national jurisdictions through a detailed analysis of the negotiations preceding, States' positions regarding, and the final language of the Rome Statute adopted in 1998. The critical question of complementarity exposes a major underlying rift in international law, between establishing meaningful collective jurisdiction over the most serious crimes of international concern, and the competing desire to maintain and protect State sovereignty. Until the twentieth century, States claimed competence to exercise supreme sovereignty over all subjects inside their territory, and many powerful States did so without the risk of external intervention. No constraints restricted this authority beyond those freely contracted into by the State. However, in the final decade of the twentieth century, a post-modern international constitutional approach emerged that privileges collective community interests favoring justice over State sovereignty. Traditional views of State sovereignty were increasingly deemed inappropriate or irrelevant to many pressing issues in international relations. As a result, States are no longer understood to be the sole repository for public authority. Instead, it may be more pertinent to envision a layering of authority at different levels of the international system.3 A central issue for international criminal law has therefore become at what level the functions and duties of the international community will be exercised. Thus, the struggle over the definition and application of complementarity in the Rome Statute of the International Criminal Court can be interpreted as a response to the question of where authority will reside in the international system.

Within this context, four different approaches to the issue of complementarity, as embodied in various draft Statutes for an International Criminal Court, can be differentiated. The first position, reflecting a classical view of State sovereignty, minimizes the role of international society and community interests in criminal justice. From this perspective, if an International Criminal Court were created, it could only exist with the explicit consent of States and under rigid limitations imposed by States, and would function as an organ of those States specifically affected. Thus, an International Criminal Court would not so much complement national jurisdictions, in the sense of working in tandem with them to render justice, but would rather be a direct extension of national jurisdictions and function under their control and on their behalf. A second approach adopts an intermediate view. While the primary layer of authority continues to reside with States, an international constitutional interest in investigating and prosecuting fundamental crimes is simultaneously recognized. Thus, an international court would function when States prove unable or unwilling to fulfill their obligations to deliver justice. In this sense, an International Criminal Court would complement national systems when they fail to render justice, and would supplement and complete, rather than impose upon, national efforts. A third, broader approach, acknowledges core crimes of such horrendous character that the international community has an overwhelming interest in punishing the perpetrators. These core crimes would certainly include genocide, and might be extended to include war crimes, crimes against humanity, and aggression. For such crimes, authority could be exercised and justice rendered either at the national level by States or at the international level by a permanent criminal court. Therefore, an international court would complement national systems to the extent that while primacy would rest with national courts, justice for core crimes could be delivered at either the national or the international level. Finally, a fourth approach locates primary authority for international criminal justice at the international layer. This configuration already exists, for limited circumstances, in the form of the ad hoc tribunals for the Former Yugoslavia and Rwanda. Under such a jurisdictional regime, national systems complement international courts, rather than the reverse.

Complementarity manifests itself through three primary issues in the draft Statutes and Rome Statute of the ICC. Each will be analyzed in subsequent chapters in order to better understand the evolution of complementarity and the jurisdictional regime of the Court. The first emanation of complementarity is subject matter jurisdiction, which defines the crimes that the Court will be granted authority to prosecute. Throughout the Statute drafting process, the broadness of the Court's subject matter jurisdiction was highly contested. Predictably, willingness to permit the Court greater reach in its subject matter jurisdiction often generated resistance from States attempting to preserve national primacy. In the Rome Statute, the ICC was granted limited subject matter jurisdiction over the most serious crimes of international concern, specifically genocide, war crimes, and crimes against humanity, as well as the crime of aggression. Narrowing the Court's subject matter jurisdiction was considered necessary in order to create a regime of complementary jurisdiction. Although States retain primacy in international criminal prosecutions, the Court can intervene in cases of grave violations of international concern.

Complementarity also emerges in the preconditions to the exercise of jurisdiction by the Court, specifically the mechanisms for triggering ICC jurisdiction. Throughout the drafting process, divergent views were offered about whether States Parties, the Security Council, an independent Prosecutor, or some combination thereof should be allowed to initiate proceedings. Although it was generally agreed that any State Party could trigger jurisdiction given the serious nature of the crimes, some States feared that permitting the Security Council to trigger the Court's jurisdiction would politicize the Court and make it little more than a tool manipulated by the great powers. In contrast, others argued that the only way to assure an active role for the Court was to allow the Security Council to trigger the ICC's jurisdiction when individual States proved unwilling. Similarly, some States worried that an overzealous or politically motivated Prosecutor might lead to abuses of power. Others asserted that granting the Prosecutor independence would secure a viable and effective Court, as State complaints and Security Council referral might prove insufficient to allow the ICC to operate on behalf of the entire international community. Unless the Prosecutor could trigger the Court's jurisdiction, the reluctance of State Parties to make complaints and a potential Security Council veto might hinder referrals of appropriate cases. Thus, establishing preconditions to the exercise of jurisdiction by the Court would become a necessary step in creating a regime of complementarity that could successfully balance concerns for State sovereignty against the imperative of meaningful international justice.

Complementarity also appears in the methods for State consent and acceptance of the Court's jurisdiction. Three different models for State acceptance were considered throughout the drafting process. The broadest is a constitutional model for all crimes within the subject matter jurisdiction of the Court, based upon universal jurisdiction. Under this regime of State consent, even if only a few States sign the treaty bringing the ICC into existence, the Court is still understood to have objective personality over all States. Because each State, individually, has the right to try core crimes without the consent of any other State, this right could be pooled and collectively granted to the ICC. Thus, the Court might exercise its jurisdiction in any given case without the specific consent of States. A variation of this model would apply universal jurisdiction only to the crime of genocide based upon the terms of the Genocide Convention, which specifically outlines the creation of an International Criminal Court to try perpetrators of genocide. A second approach to the issue of State consent is inherent jurisdiction. Under this system, a State would automatically accept the jurisdiction of the Court over core crimes by becoming Party to the Statute through ratification. This approach was often considered in tandem with a categorization of States whose consent would be required for the ICC to investigate and prosecute. Although delegations disagreed as to whether this list should be disjunctive or conjunctive, types of States on the list variously included the territorial State, the State of nationality of the accused, the State of nationality of the victim, and the custodial State. Thus, if one or a combination of these States were a Party to the Statute, under inherent jurisdiction the Court could act without securing any additional specific State consent. The third and most restrictive model for State acceptance is a specific consent model, also known as an "opt-in" regime. Like inherent jurisdiction, this regime would work in conjunction with categories of States that must accept the Court's jurisdiction. However, in the case of specific consent, even after a State ratifies the treaty it would still have to specifically accept the Court's jurisdiction either ad hoc on a case-by-case basis, or once to accept ICC jurisdiction over a restricted category of crimes. Thus, the question of what model of State consent to adopt was crucially linked to the regime of complementarity that would emerge. Although States feared handicapping the Court by creating requirements for State acceptance that were unduly restrictive, they simultaneously worried that accepting a constitutional approach might grant the Court excessive authority to act independently of States, rather than complementing national jurisdictions.

The widely divergent interpretations and approaches to these interconnected issues demonstrate the importance of the struggle over the meaning and practical implementation of complementarity, which may determine whether the International Criminal Court becomes a powerful tool in the search for international criminal justice, or merely a weak and inactive institution. Will complementarity allow the Court to effectively detain, prosecute, and convict the most horrendous violators of human rights and humanitarian law at the international level? Or will the specter of State sovereignty compromise or even incapacitate the operation of the ICC, sabotage its ability to render meaningful justice, and thus undermine the rule of international law itself? Such crucial questions can only be answered with reference to the Court's jurisdictional regime based upon complementarity. This thesis therefore explores the principle of complementarity as it developed and was finally enshrined in the Rome Statute. The first chapter outlines the relevant historical background to the permanent Court by examining prior twentieth century international tribunals. The second chapter then traces the evolution of the provisions regarding complementarity by considering chronologically four different draft Statutes for the ICC. The third chapter evaluates complementarity as enshrined in the Rome Statute through a detailed analysis of the drafting process and the final language of the relevant articles. Finally, the conclusion summarizes significant implications for justice in the current international system that can be derived from this examination of complementarity.

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