Complementarity: Contest or Collaboration? - FICHL

Between Territoriality and Universality:
Reflections by a Core International Crimes Posecutor
b) Another aspect that often prevents extradition is the possibility of
human rights violations in the territorial state, typically lack of a
fair trial. Human rights instruments frequently prevent a state from
extraditing when human rights violations are likely to occur.
Several recent court decisions around Europe rejecting extradition
requests from Rwanda can be illustrative. The Supreme Court in
Sweden decided to extradite a suspect to Rwanda to stand trial
there, but that decision was appealed as I understand to the
European Court of Human Rights and Sweden has announced that it
will follow the recommendations of the Court. If it denies
extradition, justice can only be done if Swedish authorities conduct
criminal proceedings on the basis of universal jurisdiction – like the
Finns are did in their Rwanda case.
This is why I am pleased with the development of universal
jurisdiction. I think all friends of international law should be happy about
it, because without it the world would be a safer place for war criminals.
This is also why I am sceptical of principles that might do irreparable
damage to the struggle against impunity.
However, I do recognize that the principle of universality needs to
be balanced, as in its absolute form it is open to misuse, and it could
actually work against us. It is a waste of police and prosecution recourses
if several states go after the same incident. There should be coordination.
It is even more problematic when the witnesses get exhausted, having to
testify in more than one jurisdiction. So how do we balance it?
Having in mind what I just said about the preference of
territoriality, the principle of complementarity could be a valid way to
balance the principle of universality.
If the territorial state is not able or willing to investigate and
prosecute, other jurisdictions need to step up, preferably the forum
deprehensionis, because exercising universal jurisdiction, in its absolute
form, is not a very recommendable solution as it will frequently lead to
trials in absentia which easily entails breaches of human rights.
If the principle of complementarity is set to balance the principle of
universality, maybe with the Rome Statute as a model, the “able and
willing” criterion needs to comprise a demand for fair trial and principles
that allow foreign jurisdictions to disregard mock trials, only set up to
avoid interference from foreign jurisdictions.
FICHL Publication Series No. 7 (2010) – page 163