Complementarity: Contest or Collaboration? - FICHL

Complementarity and the Exercise of Universal Jurisdiction for
Core International Crimes
ity (in the state of the victim). Universal jurisdiction is discussed in depth
in later chapters of this volume, especially by Judge Fausto Pocar and
Magali Maystre, and Christopher K. Hall. In its pure form, universal jurisdiction
enables the prosecution of core international crimes committed
in a foreign state, by a foreign citizen, against foreign victims, when neither
has a personal link to the forum state.
This book has a focus on the relationship between the principles of
complementarity and universal jurisdiction. Territorial states are normally
affected most strongly by core international crimes committed during a
conflict or an attack directed against its civilian population. Most victims
reside in such states. Most damaged or plundered property is there. Public
order and security are violated most severely in the territorial states. It is
also on their territory that most of the evidence of the alleged crimes can
be found. There are, in other words, obvious policy and practical reasons
why states should accord priority to territoriality as a basis of jurisdiction
for core international crimes.
But is there also an obligation for states to defer the exercise of universal
jurisdiction of core international crimes to investigation and prosecution
of the same crimes by the territorial state? If not, should there be
such an obligation? On which legal basis could it be constructed de lege
ferenda? At what stage of the criminal justice process and pursuant to
which criteria should forum states defer to territorial states? Would there
be a difference between the various core international crimes? What – if
any – is the impact of the principle of complementarity in this context?
How does it affect existing notions of subsidiarity? These are among the
questions discussed in this anthology.
In the next chapter of the anthology, Joseph Rikhof provides a
detailed overview of the contemporary practise of prosecution of core
international crimes at the national level. He shows that the number of
national prosecutions is much higher than what is frequently perceived.
He distills several key conclusions from the extensive national case law
and makes comparisons with the international jurisprudence.
In chapter 3 Rod Rastan analyzes the main dimensions of the complementarity
principle based on early judicial pronouncements by the ICC
and public policies of its Office of the Prosecutor. He explains that the
complementarity principle can be understood in two ways: “as an
admissibility principle governing case allocation between competing
FICHL Publication Series No. 7 (2010) – page 2