Complementarity: Contest or Collaboration? - FICHL

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Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes Treaties and the normative and constitutive nature of the Statute favours an interpretation providing the broadest possible protection of victims of crimes under international law over alternative interpretations which would restrict the scope of the obligations recognized by states. An interpretation limiting “its criminal jurisdiction” to jurisdiction as defined under national, as opposed to international, law would lead to the absurd result that each state could define its duty independently of international law and change it at will. A similarly absurd result would arise if each state could determine the scope of its duty by picking and choosing only certain forms of geographic jurisdiction. Since application of the first step in interpretation does not either leave “the meaning ambiguous or obscure” or lead “to a result which is manifestly absurd or unreasonable”, there is no need to take the second step of resort to supplementary sources or means of interpretation pursuant to Article 32 of the Vienna Convention. Finally, the interpretation would not merely be consistent with human rights and nondiscriminatory, within the meaning of Article 21(3) of the Rome Statute, but strengthen human rights, the third step in the analysis would be fully satisfied. 20 7.2. Catalyst for Genuine Investigations and Prosecutions at the National and International Level The exercise of universal jurisdiction since the arrest of former President Augusto Pinochet Ugarte in London on 16 October 1998 has had a catalytic effect on national investigations and prosecutions in the states where the crimes have been committed and on the enactment or strengthening of universal jurisdiction provisions in national law. It could also have an impact on investigations and prosecutions at the international level. Soon after the issuance of the arrest warrant against Augusto Pinochet, a number of investigations on gross human rights violations were 20 As alluded to above, the choice of wording was a political compromise between states which wanted the Preamble to reassert the duty of states to exercise universal jurisdiction over crimes under international law whenever international law permitted or required them to do so and those which wished to restrict the recognition of such a duty to one or more of the other forms of geographic jurisdiction. However, the drafters intended that if there was any dispute about the meaning of the term, ordinary principles of interpretation would apply to resolve the question. FICHL Publication Series No. 7 (2010) – page 212
The Role of Universal Jurisdiction in the International Criminal Court Complementarity System open in states which, until then, had been reluctant to do so for legal or political reasons. Amnesties and statute of limitations, the two main legal bars for prosecutions, but also superior orders, were set aside later by courts in Argentina, 21 Bolivia, 22 Chile, 23 Panama, 24 Peru 25 and Uruguay, 26 among other states. 27 In certain instances, the exercise of universal jurisdiction by national courts could also have an impact on international courts by encouraging them to act. For example, the likely impact of universal jurisdiction cases when filed involving Afghanistan, Colombia and Georgia on the protracted preliminary examinations of those situations by the ICC Prosecutor could encourage him to request authorization at last to open investigations in those situations. Such cases are almost invariably opened only when territorial states or the suspect‟s own state has failed to investigate or prosecute genuinely the crimes. Similarly, if national courts were to exercise universal jurisdiction over persons suspected of crimes committed in the Darfur region of Sudan or in Uganda, it might well call into question the genuineness of investigations and prosecutions in those countries and undermine any admissibility challenges in cases in the International Criminal Court. 21 Argentina Supreme Court, Priebke, Erich s/ solicitud de extradición, case No. 16.063/94, 2 November 1995; Arancibia Clavel, Enrique Lautaro s/ homicidio calificado y asociación ilícita y otro, case No. 259, 24 August 2004; and Simón, Héctor Julio y otros s/ privación ilegítima de la libertad, case 17.768, 14 June 2005. 22 Bolivia Supreme Court, case of Masacre de la calle Harrington, 21 April 1993. 23 Chile Supreme Court, Second Chamber, case Rol N°559-04, 13 December 2006. Santiago Appeals Court, Fifth Chamber, case Rol Nº 11.821-2003, 5 January 2004 and case Rol Nº 24.471-2005, 10 April 2006. 24 Supreme Court of Panama, Heliodoro Portugal case, 2 March 2004. 25 Constitutional Court of Peru, case of Genaro Villegas Namuche, Exp.N° 2488-2002- HC/TC, 18 March 2004; Supreme Court, Alberto Fujimori case, 7 April 2009. 26 Uruguay Supreme Court, Sabalsagaray Curutchet, Blanca Stela case, 19 October 2009; and Gregorio Alvarez case, 21 October 2009 (First Instance Court, Judge Luis Charles). 27 See also N. Roht-Arriaza, The Pinochet Effect: Transitional Justice in the Age of Human Rights, University of Pennsylvania Press, 2005. FICHL Publication Series No. 7 (2010) – page 213
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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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Publication Series Co-Editors Mr. M
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Complementarity: Contest or Collaboration? - FICHL

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