Complementarity: Contest or Collaboration? - FICHL

Complementarity and the Exercise of Universal Jurisdiction for
Core International Crimes
sion of atrocities. 45 Some countries, such as Denmark and Norway, use or
used a combination of broad extraterritorial jurisdiction, regular criminal
law provisions for substantive offences, such as murder or torture, and a
harsher sentencing regime to take into account the unique and international
nature of the domestic offences. This approach has as an advantage
that the crimes under consideration are well known to domestic prosecutors
and judges while at the same time there is no need to adduce evidence
or legal arguments regarding the international elements of war crimes,
crimes against humanity or genocide. The disadvantage is that although a
harsher sentencing regime can reflect to some extent the seriousness of
the crimes under consideration, the stigma attached to a longer sentence
for murder committed during an armed conflict or in a systematic or
widespread manner (the hallmarks of war crimes and crimes against humanity)
is not the same as a similar or even shorter sentence for an international
crime in a similar circumstances. As well, unlike domestic offences,
international offences are not subject to statutes of limitations. 46
This latter point was brought home by the ICTR in the Bagaragaza
case where Norway has requested to have this case transferred to its jurisdiction
from the ICTR as part of the ICTR completion strategy. Norway,
the defendant and the ICTR prosecutor made arguments in support for
such a transfer, but both the ICTR Trial 47 and Appeal Chambers 48 refused
to do so since Norway did not have legislation criminalizing international
offences and since a harsher sentencing regime was deemed not sufficient
to overcome the lack of appropriate legislation. The case had been transferred
to the Netherlands 49 and Norway amended its legislation on 7
March 2008 50 .
45
For an overview of some of these regimes, see Stéphane J. Hankins, “Overview of
Ways to Import Core International Crimes into National Criminal Law” in Morten
Bergsmo, Mads Harlem and Nobuo Hayashi (eds.), Importing Core International
Crimes into National Criminal Law, Second Edition, Torkel Opsahl Academic EPublisher,
Oslo, 2010.
46
See the 1968 Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes Against Humanity, http://www.ohchr.org/english/law/warcrimes.
htm, which is now considered part of customary international law.
47
ICTR-2005-86-R11bis, 19 May 2006.
48
ICTR-05-86-AR11bis, 30 August 2006.
49
ICTR-2005-86-R11bis, 13 April 2007; because of adverse jurisprudence in 2007 in
the Netherlands regarding the crime of genocide and universal jurisdiction (see below
at footnotes 132-133), he was ordered transferred back to the ICTR on 17 March 2008
FICHL Publication Series No. 7 (2010) – page 22