Complementarity: Contest or Collaboration? - FICHL

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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
The Relationship between the Principle of Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes 4.4.4. Subsidiarity – a Duty or Discretion? In some states subsidiarity is considered not a criterion as such, but a basis for prosecutorial discretion. In Belgium, for example, the federal prosecutor may decide, taking into consideration the interests of justice and Belgium‟s international obligations, to transfer a case to an international tribunal or to a court in the territorial state, the suspect‟s home state or the custodial state. 44 If the crime falls within the ICC‟s jurisdiction, the ICC shall be informed of a deferral. 45 In Germany too, subsidiarity is formulated as a matter of prosecutorial discretion where one factor is whether there is an investigation by a state with closer connection. 46 This regulation should be seen in connection with the Legalitätsprinzip according to which the German federal prosecutor is, at the outset, under a duty to prosecute any crime under German jurisdiction, arguably also including crimes covered by universal jurisdiction. Discretion may also be appropriate in another sense. Even if there is jurisdiction and the case is not genuinely dealt with by any state, it might not be in the interest of justice to pursue the matter. Under the Rome Statute, the ICC prosecutor can thus decide not to proceed when proceeding will not serve the “interests of justice”. 47 This term is delightfully complex, leaving room for a plethora of considerations. The ICC Prosecutor has noted: The issue of the interests of justice, as it appears in Article 53 of the Rome Statute, represents one of the most complex aspects of the Treaty. It is the point where many of the philosophical and operational challenges in the pursuit of international criminal justice coincide (albeit implicitly), but there is no clear guidance on what the content of the idea is. 48 This provision allows the ICC Prosecutor to defer when he or she finds that justice so requires, but one might question whether a sub- 44 Code de procédure pénale, article 12bis para. 4. 45 Ibid. 46 Code of Criminal Procedure, section 153f. 47 Rome Statute article 53(1)(c) and (2)(c). 48 Policy Paper on the Interests of Justice, Office of the Prosecutor, September 2007, p. 1, available at http://www.icc-cpi.int/otp/otp_docs.html. FICHL Publication Series No. 7 (2010) – page 147
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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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3.1. Introduction 3 ______ Compleme
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