Complementarity: Contest or Collaboration? - FICHL
Complementarity: Contest or Collaboration? - FICHL
Complementarity: Contest or Collaboration? - FICHL
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<strong>Complementarity</strong>: <strong>Contest</strong> <strong>or</strong> Collab<strong>or</strong>ation?<br />
ity‟, has been described by the Prosecut<strong>or</strong>‟s Office as meaning that it “encourages<br />
genuine national proceedings where possible; relies on national<br />
and international netw<strong>or</strong>ks; and participates in a system of international<br />
cooperation”. At the same time it has recalled that “acc<strong>or</strong>ding to the Statute<br />
national states have the primary responsibility f<strong>or</strong> preventing and punishing<br />
atrocities” and that<br />
[a] Court based on the principle of complementarity ensures<br />
the international rule of law by creating an interdependent,<br />
mutually reinf<strong>or</strong>cing system of justice. 107<br />
The approach resonates with the a number of principles found in the<br />
preamble to the Rome Statute which emphasise that the “effective<br />
prosecution [of the most serious crimes of concern to the international<br />
community] must be ensured by taking measures at the national level and<br />
by enhancing international cooperation” and that the Court shall be<br />
“complementary to national criminal jurisdictions”. 108<br />
Although the next section focuses on the role of State-to-State<br />
collab<strong>or</strong>ation, arguably the ICC itself could play a significant role in<br />
promoting such an approach. 109 In particular, article 93(10) of the Statute<br />
provides that the Court may cooperate with and provide assistance to a<br />
State conducting an investigation into <strong>or</strong> trial in respect of conduct which<br />
constitutes a crime within the jurisdiction of the Court <strong>or</strong> which<br />
constitutes a serious crime under the national law of the requesting State.<br />
Such reverse cooperation 110 may include, inter alia, the transmission of<br />
statements, documents <strong>or</strong> other types of evidence obtained in the course<br />
of an investigation <strong>or</strong> trial; and the questioning of any person detained by<br />
<strong>or</strong>der of the Court. Such assistance is framed under the Statute in<br />
discretionary rather than reciprocal terms, and theref<strong>or</strong>e cannot be<br />
“F<strong>or</strong> the Panel, however, what matters, above all else, is that justice must be dispensed<br />
f<strong>or</strong> Darfur in a credible, comprehensive, coherent and timely manner. The<br />
needs in this regard are immense, and it is equally clear that the entire burden of justice<br />
cannot be placed on any single institution <strong>or</strong> model, be it the ICC, special courts,<br />
traditional courts, other tribunals <strong>or</strong> a hybrid court”; para. 255.<br />
107<br />
Rep<strong>or</strong>t on Prosecut<strong>or</strong>ial Strategy (14 September 2006), p. 5. See also Policy Paper<br />
(ICC-OTP 2003), p. 3.<br />
108<br />
Preamble ICC Statute, paras. 4 and 10.<br />
109<br />
See Prosecut<strong>or</strong>ial Strategy 2009-2012.<br />
110<br />
Gioia (2006), 1117-1119; Federica Gioia “<strong>Complementarity</strong> and Reverse Cooperation”,<br />
in Stahn and El Zeidy, 2010.<br />
<strong>FICHL</strong> Publication Series No. 7 (2010) – page 113