Complementarity: Contest or Collaboration? - FICHL

Complementarity and the Exercise of Universal Jurisdiction for
Core International Crimes
Rome Statute at this point should not be the standard to follow. Instead,
states should rely on existing safeguards for the exercise of national
jurisdiction, such as immunity for the most prominent state
representatives and other representatives carrying out official acts.
The Geneva Conventions and the first Additional Protocol allow the
forum state to extradite to another State Party which “has made out a
prima facie case”. 39 This could be construed as to require that the latter
state is both willing and able to proceed genuinely as required by the
complementarity principle. Yet the ICRC‟s authoritative comments
merely suggest that a “prima facie case” means “a case which … would
involve prosecution before the courts”, without any further qualification. 40
As for the Convention against Torture, adopted 35 years later, it has no
similar requirement as it only instructs the forum state to submit the
suspect to its prosecutorial authorities “if it does not extradite him”. 41
In Belgium, deferral to a foreign court is only allowed if that court
meets the requirements imposed by international law on Belgium and that
state. 42 This is a vague threshold. It can be construed so as to only require
that the courts more generally adhere to international law, as opposed to
requiring that the case in question be handled genuinely. In Germany,
exercising universal jurisdiction is only allowed when this is necessary in
order to prevent impunity and does not “inappropriately interfere with the
primary responsible jurisdictions”. 43 This too is vague. What is meant by
preventing impunity and to “inappropriately interfere”? As demonstrated
by the German Rumsfeld case of 2004, the provision has not always been
applied in a manner consistent with its spirit.
39
Articles 49, 50, 129 and 146 of the Geneva Conventions I-IV and Article 85(1) of the
First Additional Protocol.
40
Pictet 1958, supra note 7, p. 593.
41
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1984) article 7 (1).
42
Code de procédure pénale, article 12bis para. 4.
43
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.
FICHL Publication Series No. 7 (2010) – page 146