Complementarity: Contest or Collaboration? - FICHL

Complementarity and the Exercise of Universal Jurisdiction for
Core International Crimes
genocide, war crimes and crimes against humanity 35 , including Saddam
Hussein, the former president, 36 Tariq Aziz, the former minister of foreign
affairs and Ali Hassan al-Majid, known as “Chemical Ali”, while three
persons have been acquitted; Saddam Hussein and Al-Majid have been
executed, the first on 30 December 2006, the latter on 25 January 2010;
three others have been indicted.
As of 10 March 2010, the truly international or internationalized
tribunals, namely the ICTY, ICTR, ICC, the SLSC and the ECCC have
convicted 113 persons (out of 279 indictments) over the last 12 years 37 for
genocide, crimes against humanity and war crimes in conflicts with
millions of victims and thousands of perpetrators. It is unlikely that there
will be a dramatic increase in the number of people being indicted and
convicted by the above institutions given the fact that all of them, apart
from the ICC, have a short temporal jurisdiction, which will not last
beyond the year 2014 38 and since all of them will only investigate persons
who have the greatest responsibility. 39
35 See http://www.trial-ch.org/en/trial-watch/search/judgement-place/13.html.
36 See for commentaries on the institution and the trials: Michael P. Scharf and Gregory
S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal,
Carolina Academic Press, 2006; Michael P. Scharf, “The Iraqi High Tribunal: A Viable
Experiment in International Justice?”, JICJ, 2007, vol. 5, no. 2, 258-263;
Miranda Sissons and Ari S. Bassin, “Was the Dujail Trial Fair?”, JICJ, 2007, vol. 5,
no. 2, 272-286 and Nehal Bhuta, “Fatal Errors: The Trial and Appeal Judgments in
the „Dujail‟ Case”, JICJ, 2008, vol. 6, no. 1, 39-65; see also the articles on the procedures
before this tribunal in YIHL, 2006, vol. 9, 117-243 and an assessment by the
ICTJ in October 2005 in a publication entitled “Creation and First Trials of the Supreme
Iraqi Criminal Tribunal at http://www.ictj.org/images/content/ 1/2/123.pdf; see
also http://www.trial-ch.org/en/trial-watch/search.html under “Iraqi Special Court” at
“Judgment Places”.
37 The first conviction was that of Duško Tadić by the Trial Chamber of the ICTY on 7
May 1997, http://www.un.org/icty/tadic/trialc2/judgement/index.htm.
38 As a result of the completion strategy for the ICTY (see http://www.un.org/icty/publi
cations-e/index.htm) and the ICTR (see http://69.94.11.53/default.htm, “About the
Tribunal”, “ICTR Completion Strategy”) imposed by the Security Council of the
United Nations or as a result of the terms of the agreement between the United Nations
and Sierra Leone and Cambodia. The international component of the internationalized
domestic courts are also of temporary nature in that the East Timor courts
have already become fully national and the same is expected in the next few years for
the courts in Bosnia and Herzegovina and Kosovo.
39 Either as a matter of policy as for the ICTY and ICTR or as indicated in the establishing
instruments, as is the case for the ICC, SLSC and the ECCC.
FICHL Publication Series No. 7 (2010) – page 20