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