THE PRINCIPLE OF COMPLEMENTARITY IN THE ROME STATUTE

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CHAPTER 2 THE EMERGENCE OF THE COMPLEMENTARITY PRINCIPLE

Introduction

The topic of this study, positive complementarity, is deeply rooted in the principle of complementarity as articulated in the Rome Statute. 50 The principle of complementarity within the context of international criminal justice, is concerned with the distribution of jurisdiction between the ICC and the courts within national criminal systems. 51 Any attempt at developing a legal framework for positive complementarity must begin with an analysis of the relevant provisions of the Rome Statute.
This chapter starts by tracing the historical evolution of the principle of complementarity through a description of the evolution of the distribution of jurisdictional competence between national criminal courts and international criminal courts and tribunals. The tribunals considered include the ad hoc international military tribunals established after the Second World War, namely the International Criminal Court, the International Military Tribunal (Nuremberg), and the International Military Tribunal for the Far East (Tokyo Tribunal), as well as the ICTY and ICTR.52
To explain the context in which the concept of positive complementarity evolved, it is important to understand the nature of the principle of complementarity and its limitations.53 The analysis of the principle of complementarity provides a background to the discussion of the concept of positive complementarity in subsequent chapters.
The Nuremberg and Tokyo international military tribunals are discussed only to illustrate the distribution of jurisdictional competence. An historical survey of the ICTY and ICTR is undertaken as regards jurisdictional competence.54
An historical survey of the international military tribunals, the ad hoc tribunals and the Sierra Leone court is therefore undertaken to demonstrate the significance of the origin and evolution of the court systems that culimnated into the ICC, that has eventually sought to adopt a positive complementarity system. The historical survey of these earlier courts is, therefore, significant to a background understanding of the evolution of the concept of positive complemenatrity which owes its existence to certain structural failures in the rigid framework which formed the basis of these courts.. The analysis of the distribution of jurisdiction competence over a period of time and in evolving jurisdictions provides a useful background to explain the evolution of the concept of positive complementarity.
The trend that emerges from the work of these tribunals up to the establishment of the ICC, may be described, in international criminal law terms, as the shift or transition from primacy to complementarity. It is to this legal and judicial transition from primacy to complementarity, that attention now turns.

1General

The principle of complementarity is essentially about jurisdiction and who can exercise jurisdiction in the context of international criminal law.55 It is necessary at this point to examine how the rules of general international law deal with the distribution of jurisdiction. 56 Thereafter, attempts at establishing international jurisdiction are considered.
The ICC is premised on the concept of complementarity, which in effect means that the primary responsibility for exercising jurisdiction in respect of international crimes rests with domestic criminal systems.57 However, it should be noted that there is no comprehensive convention obliging states to criminalise and exercise jurisdiction over international crimes at national level.58
There are two approaches to state jurisdiction under public international law.59 The first allows states to exercise jurisdiction as they see fit unless there is a prohibitive rule to the contrary.60 The second prohibits states from exercising jurisdiction unless there is a permissive rule allowing them to do so.61 Under the latter approach, states are not authorised to exercise their national jurisdiction unless they can rely on permissive principles such as territoriality, personality, protection, and universality.62
The territoriality principle can be viewed as either subjective or objective.63 It is subjective where the state has the power to exercise its criminal jurisdiction or authority within its national territory.64 The territoriality principle is objective where the state has jurisdiction over extraterritorial conduct which has an injurious effect in its territory. This is sometimes referred to as ‘effects’ jurisdiction.
Under customary international law, territoriality serves as the basic principle of jurisdiction. However, in exceptional circumstances, national laws may be given extraterritorial application, provided the national laws can be justified by one of recognised principles of extraterritorial jurisdiction under public international law.65
Whereas under the nationality principle a state may exercise jurisdiction over its nationals and their conduct, irrespective of whether they are in or outside of its territory; the passive personality principle arises where a state exercises jurisdiction over acts committed by a non-national but where the victim is a national of the prosecuting state.66
The protective personality principle allows a state to exercise jurisdiction over conduct outside of its borders but which threatens its security; while the principle of universality recognises that conduct outside its national borders is a danger to the state and its nationals.67 Against this background the question of jurisdictional competence emerges as important.
In an era without international tribunals, national courts did not only have primacy of jurisdiction, but also had sole jurisdiction over criminal acts. Therefore, it was states, whether exercising jurisdiction based on territoriality, nationality, or passive or protective personality, that were responsible for the prosecution of offences. Without international criminal tribunals, the issue of the distribution of jurisdiction between international tribunals and domestic courts did not arise. The only issue involving the distribution of jurisdictional competence that may have arisen, concerned its horizontal distribution between states inter se.

The international military tribunals

A consideration of the establishment and functions of the United Nations’ War Crimes Commission (UNWCC) set up on 20 October 1943, provides a background against which to analyse international military tribunals. 68 The UNWCC was primarily a fact-finding body which performed advisory functions for the development of the principles of international law and planning for international tribunals.69
The UNWCC was established to collect, investigate, and record evidence of war crimes, and to identify, where possible, the individuals responsible.70 However, the UNWCC had no power to prosecute suspected war criminals and could only report back to its UN members.
It was then incumbent upon the governments of the member states of the UNWCC to convene a tribunal – such as the International Military Tribunal (Nuremberg) – which would prosecute. 71 Against this backdrop, the nature and jurisdiction of the international military tribunals are discussed in the next section.

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Declaration 
Abstract 
Key terms
Dedication
Acknowledgements 
Abbreviations 
Table of Contents 
CHAPTER 1 BACKGROUND AND INTRODUCTION
1 Background and introduction to the study
1.2 Research question
1.3 Objectives of the study
1.4 Justification for the study
1.5 Methodology used in the study
CHAPTER 2 THE EMERGENCE OF THE COMPLEMENTARITY PRINCIPLE
1 Introduction
2 From primacy to complementarity
CHAPTER 3 THE PRINCIPLE OF COMPLEMENTARITY IN THE ROME STATUTE
1. Introduction
2. The meaning of complementarity
3. The rationale of complementarity
4. The admissibility rule and jurisdiction
5. Conclusion
CHAPTER 4 THE CONCEPT OF POSITIVE COMPLEMENTARITY
1. Introduction
2. Evolution of the concept of positive complementarity
3. The definition of positive complementarity: A normative challenge
4. Features of positive complementarity
5. Positive complementarity in the Rome Statute
6. 2010 Kampala Review Conference on stock-taking of the Rome Statute
7. The Greentree process
CHAPTER 5 LEGAL AND INSTITUTIONAL FRAMEWORK
1. Introduction
2. Legal and institutional measures to implement positive complementarity
3. International Law Association initiative
4. The International Law Commission ILC) initiative
5. The Belgium, Slovenia and Netherlands initiative
6. Civil society and positive complementarity
7. Current institutional framework on positive complementarity
CHAPTER 6 CONCLUSIONS AND RECOMMENDATIONS
1. Conclusions
2. Recommendations
Bibliography
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