The "Complementarity Regime" of the ICC

Olympia Bekou

University of Nottingham, UK

The adoption of the treaty establishing the permanent International Criminal Court[1] following a six week conference which took place in Rome in 1998, has been characterised as a giant step in the history of mankind. The ICC is expected to play an important role in the future in the battle against impunity and it has jurisdiction over war crimes, crimes against humanity and genocide[2]. The road to Rome was not easy and some of the most contentious issues found their way into the Statute literally on the eleventh hour. The question of when the Court will seize jurisdiction is certainly one of the most difficult issues negotiated and is part of the general question of how national and international spheres interact with each other.

To address the question of inter-relationship, the principle of complementarity[3] was put forward. "Complementarity" defines the relationship between the International Criminal Court and national courts and determines who should have jurisdiction in a particular case. Under this principle, international proceedings will co-exist, rather than pre-empt, with national mechanisms already in existence. Unlike its predecessors, i.e. the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda[4], the ICC will not assert its primacy[5] but will, in fact, supplement the domestic proceedings. The adoption of complementarity is regarded as a product of a compromise which emerged in the negotiations for the ICC and serves the delicate balance between the competing interests of state sovereignty and judicial independence[6].

Thus, complementarity is a novel concept which is expected to play a key role in the effectiveness of the new institution and despite its importance, no reference to the term complementarity is made in the Statute. Most importantly, no definition of its content is provided therein. It can be found in the 10th preambular paragraph, as well as in articles 1 and 17. The latter provides also the preconditions for the application of the principle. Finally, the question of complementarity has to be seen also in relation to article 20 of the Statute which deals with the ne bis in idem principle.

Coming now to the specifics of complementarity, both the preamble and article 1 of the Statute simply state that the ICC shall be complementary to the domestic systems[7].

The essence of complementarity can be more clearly discerned in article 17[8] of the Statute. Accordingly, in order for the Court to seize jurisdiction over crimes proscribed in its Statute, national courts must be proven "unwilling" or "unable". Some indication of what genuinely "unwilling" and "unable" mean is provided for in the second and third paragraph of article 17.

First, when "unwillingness" is concerned, it should be mentioned that taking into account the principle of due process, the national courts of a state should be declared unfit should the proceedings or the decision be undertaken in order to shield the accused from his/her criminal responsibility. Moreover, the undue delay may be considered as giving right to the ICC to establish its jurisdiction. Furthermore, lack of independence or impartiality enables the seizing of jurisdiction of the international court since the national authorities are presumed inconsistent with the intent to bring the alleged perpetrators to justice.

Second, with regard to the "inability", one should examine the third paragraph of article 17 which grants jurisdiction to the court in the case of total or substantial collapse or unavailability of the judicial system of a state as a result of political upheaval, armed conflict etc. This provision was inserted to take account of situations which arose in recent years in various parts of the world. Such was the situation faced for example by Liberia, Rwanda, Somalia or El Salvador.

Be it as it may, the content of both "unwillingness" and "inability" enshrined in the Statute remains rather vague and it could create problems in the future. For, no indication is given as to the methods or standards to be used, for instance, in order to prove those concepts. This might create double standards when complementarity will be applied to very differing domestic systems.

Concurrent jurisdiction entails the risk that a person may be tried twice for the same crime. This has led the drafters of the treaty to adopt the principle of ne bis in idem in the Statute of Rome. This principle ensures that a person already tried for an offence is not tried de novo for the same offence. Otherwise known as the prohibition of double jeopardy, the said principle can be found also in other human rights instruments, such as article 14(7) of the International Covenant on Civil and Political Rights[9], article 4(1) of Protocol No. 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms[10] and article 8(4) of the American Convention on Human Rights[11]. Thus, Article 20[12] of the ICC statute provides that the Court shall try no person who has been convicted or acquitted by the Court. Similarly, no other court may try a person for crimes falling under the Statute for which he/she has already been convicted or acquitted. Moreover, should a person be tried by another court for a conduct constituting a crime under the ICC Statute, he/she will not be subsequently tried by the ICC, except for those cases where there have been "sham proceedings" or the independence and impartiality of that court are in question.

In sum, the concept of complementarity constitutes a key principle for the operation of the newly established International Criminal Court and is expected to become one of the most important principles of the emerging international criminal law. It is vital in order to understand the role and the effectiveness of the proposed Court but its actual character will be further clarified through its application, once the ICC is functioning.

Author: Olympia Bekou, LL.B. (DUTh), LL.M. (Cantab.), Ph.D Candidate, University of Nottingham, UK; the author can be reached by e-mail at o_bekou@hotmail.com

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