Complementarity: Contest or Collaboration? - FICHL

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Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes In Germany, the legislation on universal jurisdiction is clearly inspired by the complementarity principle. The federal prosecutor may hand over a case to an international or foreign national court when this is “zulässig und beabsichtigt”. 22 The legislator has explained that the jurisdiction of third-party states must in any case be understood as a subsidiary jurisdiction which should prevent impunity, but not otherwise inappropriately interfere with the primary responsible jurisdictions. 23 This wording leaves crucial questions open: what is meant by “prevent impunity” and “inappropriately interfere”? In 2004, the German Federal Prosecutor decided not to initiate criminal proceedings against the United States‟ Secretary of Defence, Donald Rumsfeld, for alleged abuses in the Abu Ghraib prison. The Federal Prosecutor referred to sovereignty and pragmatic considerations and found that the jurisdictional priority of the suspect‟s home state was contingent upon that state‟s willingness and ability to prosecute. The prosecutor based his deferral on a finding that there were “no indications that the authorities and courts of the United States of America are refraining, or would refrain, from penal measures as regards the violations described in the complaint”. 24 The fact that the possibility of American authorities investigating Rumsfeld was utterly remote was not problematized. 25 In a 2007 decision not to prosecute Rumsfeld the federal prosecutor lowered the belief in an American criminal proceeding, as expressed in the 2004 decision. Instead, the deferral was now based on a finding that a German investigation would be futile: 22 Strafprozessordnung (BGBl. I, S. 1074, 1319) para. 153f(2), English translation available in International Legal Material, 2003, vol. 42, p. 1258, at 1267. 23 Referentenentwurf: Entwurf eines Gesetzeszur Einführung des Völkerstrafgesetzbuches, 22 June 2001, p. 85 (my translation); for German text, see http://www.lrzmuenchen.de/~satzger/unterlagen/V3D.pdf. 24 Decision 3 ARP 207/04-2, 10 February 2005, English translation available at http://www.brusselstribunal.org/pdf/RumsfeldGermany.pdf. The federal prosecutor found that German courts had universal jurisdiction over the acts, but the territorial state and the suspect‟s home state had priority according to Strafprozessordnung, para. 153f (2). 25 The decision is criticized in Andreas Fischer-Lescano, “Torture in Abu Ghraib: The complaint against Donald Rumsfeld under the German code of crimes against international law”, German Law Journal, 2005, vol. 6, p. 689. FICHL Publication Series No. 7 (2010) – page 140
The Relationship between the Principle of Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes [I]t is necessary to counteract the danger that complainants will … force investigative authorities into complicated, but ultimately unsuccessful investigations … The view of the complainant that the Federal Republic of Germany must act as a representative of the „international community‟ and therefore at least take up investigations is thus mistaken … [An investigation would only be justified] if significant success in resolving the situation could be achieved by investigations by German prosecution authorities, in order to prepare for future prosecutions (either in Germany or abroad). But this is not the case. 26 This brief survey has demonstrated that a subsidiarity principle for universal jurisdiction can be convenient both for states genuinely seeking to combat international crimes and for states reluctant to interfere in other states‟ affairs. The principle can justify the exercise of universal jurisdiction by highlighting that neither the territorial state nor the perpetrator‟s home state deals genuinely the case. But it can also justify noninterference by referring to it as an unqualified rule of priority for the affected states. The major difference is that states with a deferential approach assume a priori that the states concerned will deal adequately with the case and base this on a general evaluation of the domestic judiciary without questioning whether the concrete case in question will be genuinely dealt with. Currently, there is too little state practice to conclude that international law attaches a subsidiarity principle to universal jurisdiction. 27 Universal jurisdiction is still relatively rarely exercised, and when it is, some states apply a subsidiarity principle and some do not. It seems, however, fair to suggest that a subsidiarity criterion is in the process of being developed. Colangelo notes that, 26 Decision 3 ARP 156/06-2, 5 April 2007; English translation available at http://ccrjustice.org/files/ProsecutorsDecision.pdf. 27 It may be noted that the UN Darfur Report suggests that “customary rules in question … arguably make the exercise of universal jurisdiction subject to two major conditions. … Second, before initiating criminal proceedings [the forum state] should request the territorial state … or the State of active nationality … whether it is willing to institute proceedings against that person and, hence, prepared to request extradition”, see Report on the International Commission of Inquiry on Darfur to the UN Secretary-General of 25 January 2005, § 614. FICHL Publication Series No. 7 (2010) – page 141
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Complementarity and the Exercise of
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TABLE OF CONTENTS Preface .........
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4.4.10. The Right of the Person Con
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9.2. Universal Jurisdiction and its
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3.1. Introduction 3 ______ Compleme
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Complementarity: Contest or Collabo
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