Complementarity: Contest or Collaboration? - FICHL

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