Complementarity: Contest or Collaboration? - FICHL

Complementarity and the Exercise of Universal Jurisdiction for
Core International Crimes
ence aspect of the legislation only mentions international treaty law
(which means according to its legislation for war crimes international
humanitarian law treaties and for crimes against humanity human rights
conventions and the Rome Statute) while the Finnish statute refers to both
treaty and customary international law but only for war crimes (prohibition
of any acts which “otherwise violate the provisions of an international
agreement on warfare binding upon Finland or the generally acknowledged
and established rules and customs of war under public international
law”) 63 . The Canadian model goes the furthest in the reference
portion by defining the three core international crimes by immediate reference
to conventional international law, customary international law and
general principles of law while at the same ensuring that the Rome Statute
is considered a benchmark for customary international law as of 17 July
1998, but that further development in this area can continue independently.
64
These latter approaches have both advantages and disadvantages.
An advantage is that, by tying the regulation of core crimes very closely
to international law, it will be assured that these countries will never be
out of step with new developments in the international sphere. By virtue
of this link, these new developments automatically become part of their
domestic law without the need of legislative amendments. The disadvantage
is that this linkage requires all actors in criminal prosecutions to be
continually up to date with changes in the international jurisprudence.
2.4. War Crimes Proceedings Based on Territorial/Nationality
Jurisdiction
At the time of writing, there have been processes involving international
crimes based on territorial or active nationality jurisdiction in 26 countries
(including the three internationalized domestic courts in Bosnia and Herzegovina,
Kosovo and East Timor), namely seven in Europe, nine in Latin
63 Stéphane J. Hankins, “Overviews 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.
64 Joseph Rikhof, “The Canadian Model”, 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.
FICHL Publication Series No. 7 (2010) – page 26