One of the main objectives of the
Keywords: ICC, complementarity, implementation methods, fragmentation, jurisdictional conflicts, sovereignty.
First Published in Review of International Law and Politics (RILP), Vol. 3, No. 10, 2007, pp. 96-114. RILP is an USAK publication.
Parameters of complementarity may be questioned by considering situations that are not envisaged by the ICC Statute or its Rules of Procedure and Evidence particularly in consideration of the fact that when assessing whether proceedings are being conducted in good faith by local authorities, as required both by the ICC Treaty and by Article 31 of the 1969 Vienna Convention on the Law of Treaties, ICC Article 17 variables ‘inability’ and ‘unwillingness’ relating to investigations and prosecutions of ICC crimes are not adequately qualified.
Moreover, states with which the ICC will concern itself predominantly are nations that are either in conflict or in a post-conflict transition. Before such states cooperate with the Court, it will be necessary for them to re-establish a functioning legal system and introduce, in cases of secession for instance, new constitutions that will provide for a ratification of the ICC Statute. Other issues may arise from the emergence of a new state, where national constitutional legal and political considerations must be evaluated in the first place in order to determine who and to what extent has the power to enter into international agreements. Furthermore, where national constitutions do not meet high international standards, it cannot be presumed that such a state is either unable or unwilling to prosecute the ICC crimes.
Implementatıon of ICC complemetarıty norms
Although the ICC does not enjoy jurisdictional primacy vis-à-vis states parties, only adequate implementation of the Rome Statute’s provisions will ensure harmony between the ICC law and constitutional or statutory provisions and thus ensure effective state cooperation with the Court. In fact, when a state holds a suspect in its custody, ICC implementing legislation may be introduced by virtue of the presence of the alleged offender on its territory. In fact, the principle aut dedere aut judicare (duty to prosecute or extradite) is considered as representing not only a rule of customary international law but also a rule of jus cogens. Although ICC states parties are not under any clear obligation to bring into harmony domestic laws with the ICC provisions and are not specifically required to criminalise ICC crimes, the jus cogens nature of the aut dedere aut judicare principle is not affected outside the ICC regime.
At the Rome Conference,
Concerns have been expressed over the wide scope of discretion that the ICC Prosecutor enjoys in initiating investigations proprio motu, without any external oversight. The ICC Statute provides that the Prosecutor’s actions are subject to review by a three-judge ICC Pre-Trial Chamber, which must find reasonable grounds for an investigation. This does not reflect a general proposition made during the negotiation of the ICC Treaty, that the Prosecutor should have the consent of the interested state before proceeding with an investigation. States have however expressed different approaches to the possible primacy of an ICC investigation and prosecution.
It seems not only that the states will retain power to control, to a great degree, the pre-trial investigations and proceedings, not least because of complementarity, but also as they are under duties emanating from human rights law not to act to the detriment of suspects and accused persons since failure to comply with domestic law entails a breach of international law. Consequently, national courts “can and should exercise a certain power to review this law has been complied with.” The exception to this position will be investigations and surrenders executed under a Security Council resolution.
The complementarity provisions of the ICC Statute (Articles 17 to 19) are central to the understanding of the effect of constitutional incompatibilities with the ICC. The ICC Statute limits Court’s investigations to those situations where a state concerned is unable or unwilling to investigate and prosecute, and thus if it carries out genuine investigations the ICC will have no jurisdiction, thereby potential constitutional incompatibilities are avoided. The Court must not replace national criminal justice systems or act as a supervisory body over them. For example, with regard to ICC Article 19 (3), which provides that the Prosecutor may request the Court to review a decision of inadmissibility, it was said during ICC Treaty negotiations that such a review procedure gave the ICC Prosecutor too wide a power of appreciation over national proceedings. In order to be able to have jurisdiction over a case under complementarity, several countries have amended their domestic legislation. The most noticeable constitutional barriers in implementing the Rome Treaty have been (1) the judicial sovereignty; (2) the regime of extradition, which is commonly constitutionally reserved to national judicial authorities; (3) in many states, the constitutional prohibition of life-imprisonment and (4) the regulation on immunities for certain state officials, which is contrary to the ICC Statute. The need for such changes depends on the efficiency of existing national law. The process of implementation of the ICC Treaty has involved, amongst other things, including the crimes within the ICC jurisdiction into domestic law; elevating national rules to international standards and characterising them, where appropriate, as international crimes. In Germany for example, the ICC Implementation Act and the Act Amending Article 16 of the Basic Law which allows for the extradition of nationals to the ICC and to other member states of the European Union, by specifying “it will be possible to decide differently by law regarding the extradition to a member state of the European Union and to an international court.” In other states such as
Examples of Lacunae ın the ICC Complementarıty Regıme
By examining the impact of non-surrender agreements, regional amnesties, exclusion of universal jurisdiction from the ICC Statute, certain aspects of sentencing and plea-bargaining praxis on definitions and qualification of terms ‘unavailability’ and ‘unwillingness’, a significant disparity in the enforcement of complementarity measures may be illustrated.
a) Non-surrender agreements: ICC Article 98 (2), which provides that the ICC may not proceed with a request for surrender that would require the requested state to act inconsistently with its obligations under international agreements, was included in the Rome Statute to provide a methodical process for the handling of suspects among states cooperating with the Court and not to allow a state that has refused to cooperate with the Court to enter into an agreement that would secure exemption for its nationals. However, the final wording of ICC Article 98 was a deliberate attempt to increase multilateral support for the Court. In fact, Article 98 only tentatively resolves the conflict between a state’s international obligations to other states and its duty to comply with requests and orders from the Court for surrender of suspects. It leaves room for states to create and enter into international agreements that compete or conflict with such requests and orders from the Court. As an author correctly points out “Article 98 supports current treaties and allows for the negotiation of future treaties or international agreements that would secure a state’s jurisdiction over its citizens to supersede ICC jurisdiction. Thus, it protects the power of states to independently negotiate treaties concerning jurisdiction over certain criminal suspects.” It is also argued that such ‘subordination’ of ICC jurisdiction to national courts and international treaties is in line with the central ICC Statute principle of complementarity. According to this interpretation of Article 98, the Court will have to give priority to national claims of jurisdiction as well as defer to conflicting international agreements that prevent the surrender of suspects. Such conclusion follows also from the fact that there is nothing in the Statute to say that states are under an obligation not to enter into agreements that would contradict obligations undertaken by signing and ratifying the Rome Treaty, or that obligations under the Statute should prevail in the case of conflict. During a parliamentary debate in 2002, the Irish Minister of Foreign Affairs noted in fact that his government saw “no prohibition within the
b) Regional amnesties: ICC states parties have undoubtedly conferred some of their penal powers to the ICC but they have also refused to ‘relinquish sovereign prerogatives in administering criminal justice.’ Importantly, the ICC Statute lacks provisions on amnesties, pardons, parole, and sentence commutations. During the Rome Conference in fact, many delegations maintained that “the Statute should not permit the Court to intercede in the administrative (parole) or political decision-making process (pardons, amnesties) of a State.” In 2004 the Chief of Cabinet and Head of the Jurisdiction, Complementarity and Cooperation Division, ICC Office of the Prosecutor, responded to a request to assess the ICC practicality of an amnesty which was promised to rebels in Uganda, by stating that “in the case of Uganda, as with the Democratic Republic of Congo, we have to look at the peace process and make sure that our investigations are not an obstacle to these peace settlements.” Furthermore, it had been perceived that conferring jurisdiction to the ICC could undermine essential national and transnational efforts, and actually obstruct the effective fight against these crimes. These crimes require “an ongoing law enforcement effort against criminal organisations and patterns of crime with police and intelligence resources. The Court will not be equipped effectively to investigate and prosecute these types of crimes.”
c) Non inclusion of universal jurisdiction in the Statute: As it is evident throughout the ICC drafting process, many countries expressed an unequivocal preference for domestic prosecutions. The Rome Conference does in fact reflect the careful and reserved approach to the admissibility of cases and limits of ICC jurisdiction. This resulted in the exclusion of universal jurisdiction under the Statute, which means that the Court would, in theory, not be able to prosecute criminals who only temporarily find themselves on the territory of a state party. This ICC jurisdictional limitation is founded too in general treaty law. All existing international courts have jurisdiction only over states that are parties to a particular treaty providing for their jurisdiction. Treaties establishing international courts, except those created by the UN Security Council acting under UN Chapter VII (such as ICTY and ICTR), afford states parties discretion over the powers that the courts will have in relation to jurisdiction and remedies. Also, state practice in the use of the optional clause shows that the ‘state’ is still largely in control with regard to making advanced jurisdictional grants. As reflected in the 1969 Vienna Convention, treaties cannot bind non-parties. Some commentators contend however that the objection that the ICC Treaty’s conferral of jurisdiction over non-party nationals violates the law of treaties can only be valid if the Treaty provisions are the exclusive basis of that ICC jurisdiction. For example, if the jurisdiction to be exercised by the ICC is the pre-existing jurisdiction of states parties which they have delegated to the Court, then potentially the ICC’s jurisdiction originates from sources outside the ICC Treaty which cannot bind non-parties.
In 1998, at the Preparatory Committee,
Furthermore, the idea of delegated universal jurisdiction (which was hoped for by many but rejected by the majority and therefore not included in the ICC Treaty) as a basis for ICC jurisdiction over non-parties does not account for ICC jurisdiction over a number of crimes under its Statute, crimes that are not however subject to universal jurisdiction. For example, some violations of Protocol I to the 1949 Geneva Conventions are not subject to universal jurisdiction under customary law and thus the delegated universal jurisdiction theory of ICC jurisdiction over non-parties would not account for jurisdiction over some of the crimes within the ICC Statute. Here is an example. Recently, in a case before the
Moreover, many states also consider that customary law may not become part of their legal systems without the involvement of the parliament, which should codify it into national law. During the Rome Conference for example,
d) Sentencing: The ICC Statute is in effect silent on the purposes and principles that govern the rules on sentencing. This is the end result of substantive debate on the matter at the 1998 Rome Conference, which focused instead on capital punishment. This ‘omission’ threatens the impact of ICC sentencing law and it inevitably leads to application of inconsistencies among states parties as sentencing is based and justified on different national objectives and beliefs. Sentencing methods serve a major role in promoting deterrence, retribution or reconciliation. For example, one of the principal aims of the ICTY was to deter future violations of international criminal law. The Trial Chamber of the ICTY had in fact discussed the objectives of deterrence in the context of the United Nations Security Council’s overriding concern to maintain peace and security in the former
The ICC Statute permits the Court to impose two types of penalties: imprisonment for a specified term or life imprisonment (Article 77). After debate over whether minimum and maximum limits should be set on the terms of imprisonment, eventually, Article 77 only contains a 30year maximum. Life imprisonment was opposed by a number of countries, particularly Latin American ones, whose constitutions prohibit this penalty as a violation of human rights, being cruel, inhumane, and inconsistent with the aims of rehabilitation. A provision for a mandatory review of penalties, when the person has “served two thirds of the sentence or 25 years in the case of life imprisonment” (Article 110) was added to mitigate some of the concerns about life imprisonment. The Court may also order fines and forfeitures. The Statute recognizes that these penalties would be in addition to imprisonment.
There were divergent and strong views on whether the death penalty should be explicitly included as a penalty, with
The principal aim of ICC sentencing practice will aim at ensuring that there is no justification for serious violations of international criminal law. Whilst pursuing this goal, a balance should be reached between proportionality and culpability which means that similar crimes must be dealt with by equal punishment and furthermore that the penalty imposed be proportionate to the wrongdoing. The possibility of unjust and disproportionate sentences is addressed only in Part 8 (Appeal and revision) of the ICC Statute which specifies that “a sentence may be appealed, in accordance with the Rules of Procedure and Evidence, by the Prosecutor or the convicted person on the ground of disproportion between the crime and the sentence.” Failure to deal adequately with consistency and disproportionality issues significantly undermines the capacity of the ICC to deliver a sentencing practice and reflect contemporary due process concepts and instruments promoting access to justice and fair trial, such as the European Convention on Human Rights. Inconsistencies that are likely to emerge from the application of ICC law will inevitably become apparent as depending on how the ICC Treaty is being implemented into national law, as well as on whether national laws provide for amnesties and pardons, two defendants accused of the same crime may be subject to two different sentences. One defendant may earn a life term sentence, while the other might walk free under a national amnesty provision. However, the ICTY confirmed in the Celebici case the importance of the principle applied, that ‘gravity is determined in personam and is not one of universal effect.’ Neither the ICC Statute nor the Rules of Procedure and Evidence provide for techniques of securing consistency. ICC Article 76 (1) which stipulates that “the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence” implies a significant degree of discretion, without defining fundamental rationales for the Court’s sentencing praxis. As with the ad hoc tribunals, this primary sentencing purpose is deterrence. However, the ICC’s effective contribution to deterrence is largely overstated.
The ICC Statute prescribes the sentence of imprisonment for a certain number of years, no longer than thirty, and that of life imprisonment. The FYROM Criminal Code for example contains the same sanctions but besides life imprisonment specifies the sentence of imprisonment for a certain time, limited to a maximum of fifteen years. National laws leave space for variations in the system of punishments in national legislation. However, implementation by a domestic court of an ICC sanction may result in commutation of sentences (i.e. amnesties) which could trigger the complementarity jurisdiction of the Court, if the delivered sentence does not correspond to the gravity of the crime in question.
e) Plea-bargaining: When an accused admits guilt before the ICC, the Trial Chamber must satisfy itself as to the voluntariness of the admission, that the accused understands the consequences and that the admission is supported by the charges and factual evidence available to it. However, neither the ICC Statute nor the Rules of Procedure and Evidence provide an adequate explanation as to the impact of guilty pleas on sentencing. This is important as sentencing ‘discounts’ in return for guilty please undermine the presumption of innocence and the necessity for the prosecution to prove its case. In fact, in most civil law jurisdictions the guilty plea may not be accepted at all. Originally, the ICTY rejected suggestions made by the
The persons appearing before us will be charged with genocide, torture, murder, sexual assault, wanton destruction, persecution and inhumane acts. After due reflection, we have decided that no one should be immune from prosecution for crimes such as these, no matter how useful their testimony may otherwise be.
The ICTY jurisprudence shows however that although guilty pleas may not satisfy the common law general requirement that the prosecution prove its case they are significant in the work of an international trial and as such may form part of the ICC praxis. Such rationale for the acceptance and encouragement of guilty plea-bargaining undermines the quest for the truth. Consequently, if the ICC follows and adopts this praxis, provisions relating to the presumption of innocence, equality between the parties, the protection of self-incrimination and fundamental pre-trial rights covered in the Statute and Rules will be questionable. However, under the ICC complementarity system, where a case falls within the realms of national law a state may either offer guilty pleas and thereby potentially demonstrate ‘unwillingness and inability’ to effectively investigate and try persons, or offer guilty pleas in exchange for a lower sentence, in order to avoid exposing to the international arena the extent of egregious crimes committed either on its territory or by its nationals.
Transfer of crımınal proceedıngs from the ICC to natıonal courts
Under examination at present are the effects of complementarity by which the ICC may refer proceedings to national authorities. Instrumental to this assessment is the reference to the recent praxis of the ICTY and ICTR. Clearly defined procedures regarding cooperation and transfer of proceedings from the Court to national competent authorities are essential both within the Statute and implementing legislations, in order to enhance and advance the interaction between the two parties, with the aim of benefiting suspects and accused persons in pre-trial proceedings. However, anticipating unfairness or inexperience of the judiciary, accused persons sometimes have a preference for international rather than domestic adjudication. The issue arises then whether he/she has the right for the proceedings not to be referred to the state of nationality. In the Jankovic Case before the ICTY Appeals Chamber the Appellant contested a decision by the Referral Bench to refer his case to the relevant court in Bosnia and Herzegovina (BiH), by submitting that the state lacked a ‘fully competent judicial system’. Being apprehensive of a potentially unfair trial in BiH, he argued that, since a case might be prosecuted either in an international forum or before a competent national court, his case be referred to
The pressing need but also willingness of the ICTY to refer war crimes trials to national legal authorities, highlights the importance of valuable and fair domestic trials to secure justice and stimulate local institutional change. In fact, reports indicate increasing understanding and application of international law in national courts. In order to further advance the correct application of international criminal law it has been proposed that ICTY evidence be admitted into national courts to facilitate and increase the effectiveness of war crimes trials. The use of the Tribunal’s evidence allows local judges and prosecutors to benefit from the investigative expertise and resources of the ICTY. Since under the ICC Statute a state may make a request for referral from the Court concerning relevant evidence and additional information, it would be constructive for such evidence to routinely become admissible in national courts. For example, the ICTY concluded that evidence gathered by the Prosecutor would be of great value for the internationalised Panels in Kosovo. There should be no statutory limitations to that effect. By admitting statements given to the ICC during proceedings, national courts could avoid direct examination of witnesses who have already testified in judicial proceedings regarding the same events.
A combination of difficulties in assessing on part of the ICC the ‘unwillingness’ and ‘inability’ to conduct trials and thereby determining the appropriateness of referral of cases to national courts constitutes significant impediments to the uniform application of complementarity measures. States may express a readiness and willingness to investigate and try cases but regional cooperation mechanisms may be missing, a fact which does not automatically imply the ‘inability’ of the national judicial system to satisfy the requirements under complementarity.
There may indeed be instances where a domestic legal system operates in an effective manner and is able to deal appropriately with atrocities committed within its jurisdiction. However, the nature of most international crimes implies, as a general rule, that they are committed by State officials or with their complicity [...] their prosecution is therefore better left to other mechanisms.
A further question is also whether ICC Articles 17 and 53 (Initiation of an Investigation) permit national measures such as amnesties for example, that may be indicators of ‘unwillingness’ and/or ‘inability’, to interfere or obstruct cooperation in preliminary stages.
The discontinuance of domestic proceedings does not, per se, preclude a possible institution of fresh proceedings at a later date; the Statute does not however address the matter of when cooperation or deferrals begin in such circumstance. Acquittals are interesting to observe here. The ICC Statute sets out that the Prosecutor is entitled to appeal against a decision of acquittal as well as a conviction or sentence. The Prosecutor may appeal for a procedural error, an error of fact or of law. This may be construed as broadening the powers of review on factual issues, which is a significant extension of the right to appeal under certain national laws. For example, the International Criminal Court Bill 2004 of
The effect of complementarity will subject national prosecutions for ICC crimes to great scrutiny, opening the proceedings’ legitimacy to question. The fact that national proceedings of international crimes are often distinctive raises many questions; many international crimes remain inadequately defined, leaving domestic courts significant scope to fill in details, and it is often unclear which procedural rules are applicable.
Combating and punishing grave violations of international law requires conventional, regional mechanisms for cooperation, such that ensure the most effective, long-term assistance between nations in criminal matters. The effects of appropriating national investigations and proceedings by the ICC have, in the long run, detrimental impact on rebuilding and/or reforming national judicial apparatus. Taking into account the different legal natures of the ad hoc Tribunals and the ICC, ICTY’s jurisprudence is interesting in understanding the basis on which deferral requests may be made. The Tribunal’s reasoning is not altogether dissimilar form the one adopted by the Security Council in referring the Sudanese criminal proceedings to the Court and it pinpoints to a potential detrimental effect of Security Council referrals to the Court by bypassing the complementarity principle, notwithstanding the willingness of a state to rebuild its judicial accountability mechanisms. In Re The Republic of
On the one hand, the focus of the ICC Prosecutor on investigating and prosecuting those bearing the greatest responsibility has raised concerns of a so-called ‘impunity gap’ which may become apparent when the Office of the Prosecutor is limiting, or seems to be limiting its actions to key leaders and major situations of crisis. Recently, the ICTY observed that ‘key leaders’ and ‘persons bearing greatest responsibility’ for the purposes of establishing jurisdiction and recommending referrals are persons “who by virtue of their position and functions in the relevant hierarchy, both de jure and de facto, are alleged to have exercised such a degree of authority that it is appropriate to describe them as among the ‘most serious'’ rather than ‘intermediate’. In presuming state action according to the principles of complementarity, ICC Article 94 (1) envisages that in similar circumstances the Court would suspend the criminal procedure in order to enable an accused to efficiently prepare a defence before national proceedings. Nevertheless, if the Prosecutor defers an investigation, he or she may request that the relevant state make available to him or her information on the proceedings. If the Prosecutor then decides to proceed with an investigation, he/she will notify the state in which deferral of the proceedings has taken place. However, within the scope of the ICC Statute, a compulsory monitoring system would be inconsistent with the purposive interpretation of the Statute once the Court exercises its ultimate competence in determining the unwillingness and/or inability of a state to conduct investigations and prosecutions; once the Court confirms a case to be within the jurisdictional reach of a particular state, respect for the judicial sovereignty of that state and its judgements must be implied. In verifying ‘unwillingness and inability’, the Office of the Prosecutor should establish principles for determining unwillingness. ‘Unwillingness’ is to be assessed on procedural and institutional factors rather than the substantive outcome and the inability includes firstly the ‘collapse’ or ‘unavailability’ of the national judicial system and secondly, the situation wherein a state is unable to obtain the accused, evidence or testimony. In addition, the Prosecutor’s authority to conduct activities relating to the presentation of a case in the territory of a state depends largely on whether or not that state has a functioning judicial system. In this context it is important to remember that, notwithstanding a state’s duty to cooperate with the ICC, problems inherent within the principle of complementarity such as the need to rely on national laws will remain. Constitutional barriers to compellability of witnesses, as well as to privileges exempting individuals from the obligation to testify are demonstrative of this. In fact, in many countries, it is not constitutionally possible to force a citizen to leave the country to attend judicial proceedings in another country. In fact, many implementing ICC laws stipulate that national laws should govern the compellability of witnesses under the ICC Statute. For instance, the Trinidad and Tobago International Criminal Court Bill 2004 instructs that the applicable law with respect to compelling a person to give evidence or answer questions, or to produce documents or other materials is the national law of Trinidad and Tobago albeit, in order to facilitate cooperation with the ICC, that law applies with any necessary modifications.
Any interference by the ICC in the national proceedings will come with the consent of the state in question. National authorities do not require under the ICC Statute an approval to investigate or apprehend suspects or accused persons and the Court is required to respect foreign judgements. Notwithstanding this obligation, the ICC may nevertheless request governments to provide information, which is not qualified in the Statute, on the progress of any investigations or trials. This is important as it could provide an opportunity for the Court to assess the degree to which ICC law is understood and applied correctly. Here is an example. In the Vuckovic Case, a Serb was originally convicted of genocide committed during the Kosovo conflict. On appeal, the Supreme Court quashed the verdict and sent it back to the first instance court. The appeal judgement stated that no genocide took place in Kosovo in 1999. This decision was criticised by OSCE as a
Wasted opportunity to thoroughly interpret the genocide statute of the Criminal Code of the
In requesting the Court to defer proceedings, the interested state should take into consideration the overall purposes of the Court, the principle of complementarity and most importantly the objective of producing the most appropriate jurisdiction for trying the accused. Consideration of the fact that the investigation process and the gathering of evidence might well take place before an alleged criminal is identified is fundamental to the timely assertion of jurisdiction and the observance of the equality of arms doctrine.
When making a decision on whether or not to initiate criminal proceedings, the ICC Prosecutor is not guided merely by legal criteria. Under the Statute, the Prosecutor must assess the political convenience of doing so with a view to satisfying the ‘interests of justice’. The jurisdictional dilemma stems from conflicting needs of the ICC to ensure international justice by punishing violations of international crimes and the interests of the states in retaining discretion regarding methods of accountability, in particular when the lawfulness of their official acts is in dispute. The institutional furtherance of disproportionate treatment of ICC states parties emanates from the continued advancement of unequal powers among Security Council permanent members; as well as giving the latter the opportunity to refer cases to the Court and to suspend cases from investigation and prosecution, the veto held by the permanent members protects them against referrals to the ICC. In practice this creates a paradox and a binary applicability of the ICC Statute, to the detriment of principles of equality and fairness in criminal proceedings. Fragmentation and therefore inconsistent application of the ICC Statute and international criminal law in general, is inherently reflected in the multiplicity of implementation methods and shifting political and legal dimensions within which complementarity measures are applied.
First Published in Review of International Law and Politics (RILP), Vol. 3, No. 10, 2007, pp. 96-114. RILP is an USAK publication.
 Venice Commission, ‘Draft Opinion on the Compatibility of the Constitutions of the Federation of Bosnia and Herzegovina and the Republica Srpska with the Constitution of Bosnia and Herzegovina’, CDL(1996)056e-rev-restr, 05 July 1996.
 The term ‘extradition’ is still frequently adopted in legislation regarding the ICC. See for example Article 8 of the
 Bassiouni M.C. and Wise E. M, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (New York: Springer, 1995), p. 28.
 See e.g. Prosecutor v Anto Furundzija, Case No.IT-95-17/1, Judgement of 10 December 1998, at 153-155.
 UN A/CONF.183/C.1/WGIC/L.11.
 Law for the Implementation of the
 House of Commons, ‘International Criminal Court Bill-Explanatory Notes’, 14 December 2000, para.13, available at http://www.publications.parliament.uk/pa/cm200001/cmbills/070/en/01070x-b.htm
 ICC Art.22 (2). See also Pacegueiro C., ‘International Criminal Court’, The International Society for the Reform of Criminal Law, 17th International Conference,
 See e.g.
 ICC Statute Art.15 (4).
 See 1995 Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, U.N. GAOR, 50th Session, Supp. No.22, U.N. Doc.A/50/22 (1995), para.25.
 CICCL Art.3 (2) (b). Article 6 (1) also provides that “On application by the Federal Department of Justice and Police (Department), the Federal Council shall decide on questions of immunity relating to Article
 CICCL Art.7 (1).
 See Statement by the Australian Prime Minister, The Hon John Howard, MP on 20 June 2002, at http://www.pm.gov.au/news/media_releases/2002/media_release1708.htm
 Ibid. Similarly, in
 Upon ratification
 Act No.342 of 16 May 2001, Sec.2.
 Ibid, Sec.2 (2).
 For instance, ECHR Art. 5 (1) stipulates that non one should be deprived of his liberty unlawfully, without the applicable extradition procedure being followed.
 Ocalan v
 Statement from
 See Mr Holmes (
 See for example how the
 This is a fundamental aspect of a correct implementation of the ICC law because a state should not circumvent its obligations simply because the international crimes lack adequate definition in domestic law. See e.g. Cameroon Case No.337/COR, Court of Appeal, 21 February 1997 where a request was surrender was challenged on the grounds that the crimes in the relevant arrest warrants were not criminal offences under the ordinary penal law of Cameroon.
 Supra, note 7.
 Adding to draft law No.715/99.
 The Cabinet approved the final drafts and the Code of Crimes Against International Law and the Implementing Act on January 16, 2002, full text available at http://www.iuscrim.mpg.de/forsch/online_pub.html*legaltext
 For example,
See e.g. Human Rights Watch, ‘United States Effort to Undermine the International Criminal Court: Impunity Agreements’, 04 September 2002 available at
 Rosenfeld E., ‘Application of
 Ibid, p. 278.
 Such explicit requirement is present in the UN Charter, Art.103 which reads: “In the event of conflict between the obligations of Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. See e.g. Sadat-Akhavi S. A., Methods of Resolving Conflicts between Treaties (Martinus Nijhoff Publishers, 2003).
 Mr Cowen, Irish Parliamentary Debates, Written Answers on International Criminal Court, 03 December 2002, Vol.558, p.1058, para.220.
 Iontcheva J, ‘Nationalizing International Criminal Law’, 18th International Conference of the International Society for the Reform of Criminal Law, 2004, p.9, available at http://www.isrcl.org/Papers/2004/Turner.pdf
 El Zeidy M. M., ‘The Principle of Complementarity: A New Machinery To Implement International Criminal Law, Michigan Journal of International Law, Vol.23, 2002, p.941.
 Ms Silvia Fernandez de Gurmendi at the Third Session of the Consultative Assembly of Parliamentarians for the International Criminal Court and the Rule of Law, Wellington, New Zealand, 06 December 2004, at http://www.pgaction.org/prog_inte_past.asp?id=170
 Statement of Hon. Scheffer D. J., Ambassador-at-large for war crimes issues, Hearing Before the Subcommittee on International Operations of the Committee on Foreign Relations, United States Senate, One Hundred Fifth Congress, Second Session, ‘Is a U.N. International Criminal Court in the U.S. National Interest?’ (July 23, 1998) p.14, at http://www.amicc.org/docs/SIOC7_23_98.pdf .
 See International Criminal Court (ICC-OTP), ‘The Principle of Complementarity in Practice’, 2003, p.7, available at http://www.icc-cpi.int/library/organs/otp/complementarity.pdf
 See United Nations, Handbook on the Peaceful Settlement of Disputes between States (New York: UN, 1992), p.70.
 See e.g.1945 Statute of International Court of Justice (ICJ) Art.34 (1), the International Tribunal on the Law of the Sea (Annex VI of the United Nations Convention on the Law of the Sea 1982) Statute Art.20 (1) and the WTO 1994 (Art. 2(1)) dispute settlement system. These instruments also provide considerable flexibility regarding exemptions from compulsory settlement system.
 Less than a third of the members of the United Nations currently have in force declarations under the optional clause and many of those states have made reservations that substantially limit the effect of their declarations, see Merrills J. G., International Dispute Settlement, (Cambridge: Cambridge University Press, 1998) p.123.
 See U.N. Doc. A/AC.249/1998/DP.2.
 Supreme Court (Hoge Raad), 11 November 1997-This decision is the fourth in a series relating to the same case (Arnhem District Court, 21 February 1996; Supreme Court, 22 October 1996; and Arnhem Court of Appeal, 19 March 1997).
 Hissein Habre, Case No.14, 20 March 2001, Cour de Cassation. The decision was also based on absence of any legislative measure establishing such jurisdiction over torture related offences, as required by Art.5(2) of the 1984 Convention against Torture.
 Art.23 of the Ley Organica 6/1985.
 Decision of the Audencia National (Sala de lo Penal), 13 December 2000.
 For a different position see e.g. Swiss Military Court of Cassation, 27 April 2001, Arrets du Tribunal militaire de cassation 2001/2002, Office de l’Auditeur en chef, Vol.12, 3enne fascicule, pp.1-31, no.21.
 Supra note 49, Proposal by
 Morris M., ‘High Crimes and Misconceptions: The ICC and
 Protocol Additional to the
 For example, conscription of child soldiers, prohibited under Protocol I is placed within the jurisdiction of the ICC but is not a crime customarily subject to universal jurisdiction.
 Special Court for Sierra Leone, Prosecutor v Sam Hinga Norman, Appeals Chamber ‘Decision on preliminary motion based on lack of jurisdiction (child recruitment)’, Case No. SCSL-2003-14-AR-72(E), 31 May 2004.
 Special Court for
 Mr Yassin (
 Supra note 49, Mr Lahiri (
 See Summary of Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Prosecution v Sam Hinga Norman, Case No. SCSL-2003-14-AR72(E), 31 May 2004, p.2, para12.
 See statement by Mr Minoves Triquell, Rome Conference, UN Doc. A/CONF.183/13 (Vol.II), p.81, para.2.
 Article 4 (4).
 Only the ICTR Statute includes a reference to the need to contribute to ‘national reconciliation’. This commitment comprised in the Preamble of the Statute and is arguably therefore of limited legal authority.
 Schabas W. A., An Introduction to the International Criminal Court (
 See Hall C., ‘The Fifth Session on the UN Preparatory Committee on the Establishment of the International Criminal Court’, American Journal of International Law, Vol.92, 1998, p. 331.
 See Prosecutor v Erdemovic, Case No. IT-96-22-T, Sentencing Judgment (29 November 1996).
 Ibid, para58.
 Supra note 69, p.87.
 Prosecutor v Tadic, Case No. IT-94-1-S, Sentencing Judgment (14 July 1997) para.61.
 Supra note 73, p.88.
 ICC Statute Art.80.
 ICC Statute Art.81 (2) (a) provides that “a sentence may be appealed…on the ground of disproportion between the crime and the sentence.”
 See Prosecutor v Todorovic, Case No.IT-95-99/1-S, Sentencing Judgment (31 July 2001), para.30.
 ICC Article 81 (2) (a).
 Supra note 75, p.95.
 See the ICTY Appeal Chamber in the Celebici Case, Sentencing Judgment (09 October 2001), para.30.
 See also Council of Europe’s 1993 recommendations on consistency in sentencing, Recommendation No. R (92) 17.
 The consequences are further exemplified by ICC Article 77 (1) which indicates imprisonment as the preferred sanction for any crimes under Article 5 (genocide, crimes against humanity, war crimes and the crimes of aggression) with fines and forfeitures regarded as additional under Article 5(2).
 See e.g. Prosecution v Jelisic G., Case No. IT-95-10-4, Judgment (05 July 2001) where the accused, a war criminal was sentenced by the Tribunal to 40 years of imprisonment and transferred to Italy to serve the sentence. However, since Italian law envisages a maximum sentence of 30 years, an Italian court reduced the sentence by 10 years. See e.g. Nanetti M., ‘
 In justifying the US opposition to the Court it had also been said that “all available historical evidence demonstrates that the Court and the prosecutor will not achieve their central goal, the deterrence of heinous crimes, because they do not and should not have sufficient authority in the real world”, supra, note 39, Statement of Hon. Bolton J., p.26.
 ICC Statute Art.77.
 ICC Statute Art. 80.
 ICC Article 64 (8) (a).
 See ICC Article 65 (4) which provides that “Where a Trial Chamber is of the opinion that a more complete presentation of the facts of the case is required in the interest of justice, in particular the interests of the victims, the Trial Chamber may: (a) Request the Prosecutor to present additional evidence, including the testimony of witnesses; or (b) Order that a trial be continued under the ordinary trial procedures provided by the Statute, in which case it shall consider the admission of guilt as not having been made and may remit the case to another Trial Chamber.”
 See Ashworth A. J., The Criminal Process: An Evaluative Study (Oxford University Press: 1998), pp.288-92.
 See Jung H. on France and Germany practice in ‘Plea-Bargaining and its Repercussions on the Theory of Criminal Procedure’, European Journal of Crime, Criminal Law and Criminal Justice, Vol.5, 1997, p. 112. See also Maffei S., ‘Negotiations ‘on Evidence’ and Negotiations ‘on Sentence’-Adversarial Experiments in Italian Criminal Procedure’, Journal of International Criminal Justice, Vol.2, No.4, 2004, pp.1050-1069.
 See UN Doc. IT/14, 17 November 1993. See also Combs N. A., ‘Prosecutor v Plavsic’, American Journal of International Law, Vol.97, 2003, pp.929-937.
 Statement made at a Briefing of Members of Diplomatic Missions, UN Doc. IT/29, 11 February 1997 at 649,652.
 Prosecutor v B. Plavsic, Case No. IT-0039&40/1-S), Sentencing Judgment, 27 February 2003 at 132; Plea Agreement Between Jean Kambanda and the Office of the Prosecutor, Case No. ICTR-97-23-1, 29 April 1998.
 Prosecutor v Todorovic, Case No.IT-95-99/1-S, Sentencing Judgement, 31 July 2001, para.81.
 See Case No. IT-96-23/2-I, Party Confidential Motion by the Prosecutor Under Rule 11bis, With Annexes I, II, III and Confidential Annexes IV and V, 29 November 2004, at 26.
 Prosecutor v Gojko Jankovic, Case No. IT-96-23/2-AR11bis.2, Appeal’s Chamber Decision on Rule 11bis Referral, 15 November 2005.
 For example, see 1972 European Convention on the Transfer of Proceedings in Criminal Matters Art.8 (a) (b) and Art.31 which provide that in settling concurrent jurisdiction claims the residence of the person must be considered.
 Supra note 97, at 23.
 ICTY RPE, Rule 11bis.
 Supra note 100, at 26.
 Supra note 98, Prosecution Respondent’s Brief, Appeals Chamber (05 August 2005), at 3.3.
 See e.g.
 CDPC, Reflection Group on developments in international cooperation in criminal matters (PC-S-NS), Final Activity Report and Summary Report of the 5th Meeting (
 A significant number of referrals had been made in pursuance of the aims established by Security Council Resolution 1534 (2004), U.N. Doc. S/RES/1534 (2004), 26 March, paras.4-5. See e.g. Human Rights Watch, ‘
 See e.g. Humanitarian Law Centre, ‘The Failure of the Nis Judicial System’ 2005, available at http://www.hlc.org.yu/english/Facing_The_Past/Press_Releases/index.php?file=1214.html It is important to remember that such failure relates here only to a court and does not reflect on the entire national judicial system.
 On improving criminal justice standards and fair trials see for example, Humanitarian Law Centre, ‘Analysis of War Crimes Trials in Vukovar (
 ICC Statute Art. 93 (10) and Rule 194.
 ICTY Press Release CC/PIU/314-E.
 In relation to the ICTY, with the exception of
 ICC Draft Statute, Art.17 (4), A/CONF.183/13.
 Sadat L. N and Carden S. R., ‘The New International Criminal Court: An Uneasy Revolution’,
 UN Security Council, “Report of the Secretary-General on the
 Bennett C. before
 Hall C. K., ‘Suggestions Concerning International Criminal Court-Prosecutorial Policy and Strategy and External Relations’, Expert Consultation on the General Issues Relevant to the ICC Office of the Prosecutor (28 March 2003) p.17.
 ICC Statute Arts.81-83.
 Art. 67(1).
 Ibid., Art. 67(2). Also, Art. 68 provides that “Rules of the Supreme Court relating to appeals to the Court of Appeal shall, with all necessary modifications, apply to an appeal under s.67.”
 Wible B., ‘De-Jeopardising Justice: Domestic Prosecutions for International Crimes and the Need for Transnational Convergence’,
 For a recent decision in favour of the locus jurisdiction see Prosecutor v Zeljko Mejakic et al, Case No. IT-02-65-PT, Rule 11bis Hearing (03 March 2005), p.199. See also Resolution by the Republic of the Philippines House of Representatives, urging the Philippine President to transmit the ICC ratification Bill to the Philippine Senate, Twelfth Session, Second Regular Session, No.800, October 2000 which stated that individuals must be held accountable nationally as it is crucial to aid victims especially and serve as a deterrence to violations of those crimes.
 Re The
 In particular, ICTY Rules of Procedure and Evidence, Rule 9 and 10.
 See for example Spanish Organisation Act on Cooperation with the ICTY (Organisation Act 15/1994 – 01 June 1994), Art. 4 (4): “No Spanish judge or court may create a conflict of jurisdiction with the International Tribunal. They shall confine themselves to stating the reasons that in their estimation form the basis of their own competence.”
 On recent successful war crimes prosecution see the Dusseldorf Supreme Court, Jorgic Nikola Case, 30 April, 3StR 215/98; Bavarian Appeals Court, Djajic Case, 23 May 1997,
 See e.g. Cavallo Case where Mexico extradited the Accused to Spain under the duty to either prosecute or extradite, Juez Sexto de Distrito de Procesos Penales Federales en el Distrito Federal, Extradicion de Miguel Angel Cavallo/Expediente de Extradicion 5/2000 (VII/230/1324/2000).
 See e.g. Colitti M., ‘Geographical and Jurisdictional Reach of the ICC: Gaps in the International Criminal Justice System and a Role for Internationalised Bodies’ in Romano et al. (eds.), Internationalised Criminal Court-Sierra Leone, East Timor, Kosovo and Cambodia (Oxford University Press: 2004) p. 418. See also International Criminal Court (ICC-OTP), ‘Comments and Conclusions of the Office of the Prosecutor’ in the Summary of Recommendations Received during the First Public Hearing of the Office of the Prosecutor, convened from 17-18 June 2003, Hague, at 2, available at http://www.icc-cpi.int/library/organs/otp/ph/ph1_conclusions.pdf
 See e.g. ICTY Appeals Chamber refusal to refer a case to national authorities in Prosecutor v Radovan Stankovic, Case No. IT-96-23/2/-AR11bis.1, Decision on Rule 11bis Referral (02 September 2005).
 Prosecutor v Dragomir Milosevic, Case No. IT-98-29/1-PT, Decision on Referral of Case Pursuant to Rule 11bis (08 July 2005).
 ICC Statute Article 19 (11).
 See also ICC RPE, Rule 5.
 ICC-OTP, Informal Experts Paper ‘The Principle of Complementarity in Practice’, 2003, at 14, available at http://www.icc-ci.int/library/organs/otp/complementarity.pdf
 Ibid, at 15. Term ‘unwillingness’ is to be given a broad interpretation so as to cover various ‘inability’ scenarios in the latter part of ICC Statute Art.17 (3) as well as to cover typical cases of inability.
 See for example Joint Committee on Human Rights, ‘Memorandum from the Committee on the Administration of Justice’, 2003, available at
 See for example, with regard to life imprisonment constitutional incompatibilities, Duffy H. ‘The National Constitutional Compatibility and International Criminal Court’, Duke Journal of International and Comparative International Law, Vol. 11, No. 1, 2001, p. 38.
 ICC Statute, Article 18 (5).
 Vuckovic M. and Bisevac B., indicted 29 November 1999 by the internationalised panel of Kosovo’s Supreme Court.
 In particular Art.141.
 OSCE, ‘Kosovo’s War Crimes Trials: A Review’, 23 September 2002, p. 50, available at http://www.osce.org/documents/mik/2002/09/857_en.pdf
 See ICC Statute Art.53 (2) (c).
First Published in Review of International Law and Politics (RILP), Vol. 3, No. 10, 2007, pp. 96-114. RILP is an USAK publication.
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