Complementarity: Contest or Collaboration? - FICHL

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Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes states have too often prevailed over their legal obligation to prosecute alleged perpetrators of core international crimes. Has the bell therefore tolled for the end of universal jurisdiction? This contribution argues the contrary and explores how the goal pursued by universal jurisdiction could be better enforced through the principle of complementarity. In conclusion, this contribution develops ideas on how the International Criminal Court‟s complementarity principle could induce states to abide by their obligations and exercise universal jurisdiction for core international crimes. 9.2. Universal Jurisdiction and its Origins Although the topic of universal jurisdiction has been heavily debated in academic literature, clarifying the basic concepts may provide a better understanding of the complexity and limits of the principle. Before turning to this main issue, this chapter first describes the traditional grounds of criminal jurisdiction in international law and, subsequently, assesses briefly the efficacy and difficulties arising from their application to the prosecution of core international crimes. 9.2.1. From the Principle of Territoriality to Universal Jurisdiction As a preliminary remark, it is important to recall two points. First, jurisdiction can be civil or criminal. However, only universal jurisdiction linked to individual criminal responsibility will be considered in this analysis. Second, jurisdiction has two distinct aspects, namely jurisdiction to prescribe – or prescriptive jurisdiction – and jurisdiction to enforce or enforcement jurisdiction. The first refers to the state‟s authority, under international law, to declare the applicability of its criminal law to given conduct through legislation or, in certain states, through judicial ruling. The latter refers to the state‟s authority, under international law, to implement or apply its criminal law either through the courts or through police and other executive actions. 3 In other words, “jurisdiction to prescribe refers to a state‟s authority to criminalize given conduct, jurisdiction to enforce the authority, inter alia, to arrest and detain, to prosecute, try and sentence, and to punish persons for the commission of acts so 3 Roger O‟Keefe, “Universal Jurisdiction: Clarifying the Basic Concept”, in Journal of International Criminal Justice, 2004, vol. 2, no. 3, p. 736. FICHL Publication Series No. 7 (2010) – page 248
The Principle of Complementarity: a Means Towards a More Pragmatic Enforcement of the Goal Pursued by Universal Jurisdiction? criminalized”. 4 Logically, in theory, these two aspects are independent of each other. However, in practice, the prescription of an act and its enforcement are intertwined. 5 Nonetheless, it is worthwhile recalling this distinction when dealing with extra-territorial jurisdiction. Under international law, each state is free to determine the scope of its criminal law. This liberty rests in its sovereignty. 6 Nevertheless, in exercising their criminal jurisdiction, states must respect international law. In short, the exercise of repressive power can be limited by international law, in particular by the prohibition on interference such as when a state interferes in another state‟s internal affairs 7 or when a state exercises its competence in violation of a norm of higher rank. Conversely, a state can be under an obligation to exercise its criminal jurisdiction to prosecute certain acts by virtue of a norm in international law. In 1927, in the celebrated Lotus case, the Permanent Court of International Justice stated that “in all systems of law the principle of the territorial character of criminal law is fundamental”, although it also added that “�t�he territoriality of criminal law … is not an absolute principle of international law and by no means coincides with territorial sovereignty”. 8 It further added: … jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention. It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law … Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their 4 Id., pp. 736-737. 5 Id., p. 741. 6 Gerhard Werle, Principles of International Criminal Law (Second edition), TMC Asser Press, The Hague, 2009, p. 66 and n. 375. 7 Article 2(1) of the United Nations Charter provides: “The Organization is based on the principle of the sovereign equality of all its Members.”; Gerhard Werle, Principles of International Criminal Law, see supra note 6, p. 66 and n. 376. 8 Permanent Court of International Justice, The Case of the S.S. “Lotus” (France v. Turkey), Judgment, 7 September 1927, Series A, No. 10, p. 20. FICHL Publication Series No. 7 (2010) – page 249
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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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