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First published by Review of International Law and Politics (RILP), Vol. 3, No: 10, 2007, pp. 96-114. RILP is an USAK publication. All rights reserved.

INTRODUCTION

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.[1] 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.

ImplementatIon of ICC complemetarIty 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.[2] 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.[3]   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.[4]

At the Rome Conference, Croatia suggested the inclusion of a provision under which a state should not refuse a request for surrender of persons by the Court as obligations deriving from such a request shall prevail over any legal impediment to do so, be it under national law or extradition treaties of the state concerned.[5] However, ICC negotiations show that there is a general agreement that where the Court has determined a case inadmissible, this does not on its own place the requested state under any international obligation to surrender the person to the requesting state.[6] For example, through its ICC implementation Act, Germany will defer a case to the ICC only under very particular circumstances when requirements for complementarity are not fulfilled. Under the German Rome Statute Implementation Act, Germany need not prosecute a suspect if the ICC has agreed, in advance, to take over a case.[7] In the United Kingdom, the interpretation afforded to ICC Article 90 on competing requests is that states parties must give priority to the ICC request unless the country requesting extradition is a non-party and the requested state is under an existing obligation to extradite the person to that state non-party.[8] Importantly, in a case of interpretational conflict, the ICC should enforce the principle in dubio pro reo, whereby the more favourable construction to the interests of the accused should be adopted.[9] Some ICC implementation laws stipulate that when a state has effectively initiated or is conducting an investigation with regard to a person sought by the Court, that state has the right to ask the ICC Prosecutor to restrain its competence in favour of the jurisdiction of the state.[10] However, states are not, in theory at least, allowed to challenge the admissibility of a case during an ICC Article 15 (Prosecutor) stage, although pursuant to ICC Article 19 (Challenges to the jurisdiction of the Court or the admissibility of a case) the determination on the issue of admissibility becomes clearer.

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.[11] 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.[12] States have however expressed different approaches to the possible primacy of an ICC investigation and prosecution. Portugal for example clearly stated its intention to prosecute any perpetrators of ICC crimes found in its territory but “within the respect for the Portuguese criminal legislation.”[13] The Swiss Federal Law on Cooperation with the International Criminal Court 2001 (CICCL) provides that it is its Central Authority that finalises decisions on the admissibility of cooperation, on cooperation procedures and challenges to the jurisdiction of the ICC.[14] It also provides that if the ICC seeks jurisdiction over proceedings the Central Authority may, in agreement with competent national authorities, assert Swiss jurisdiction.[15] Similarly, Australian International Criminal Court Act 2002 is also interpreted as not compromising Australia’s sovereignty.[16] Importantly, this legislation provides that no prosecution may be initiated, or proceedings conducted, without the consent of and in the name of the Attorney General.[17] The Australian legislation also includes a clause limiting judicial review of any decision of the Commonwealth Attorney General to give or refuse consent to an arrest on a warrant issued by the Court, the surrender of a person to the Court, or conduct a prosecution under Australian law in relation to the offence contained in implementing legislation.[18] Another illustration of a contained ICC legislation is the Danish ICC implementing legislation which provides that the Minister of Justice decides upon a request from the Court on extradition of persons against whom the Court has initiated criminal proceedings.[19] In addition, he/she decides upon a request on extradition for execution of the Court’s judgment.[20]

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.[21] Consequently, national courts “can and should exercise a certain power to review this law has been complied with.”[22] 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.[23] 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.[24]  In order to be able to have jurisdiction over a case under complementarity, several countries have amended their domestic legislation.[25] 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;[26] elevating national rules to international standards and characterising them, where appropriate, as international crimes. In Germany for example, the ICC Implementation Act[27] 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,[28] 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.”[29] In other states such as Canada and New Zealand, implementation has involved extending the jurisdiction of domestic courts to cover crimes committed outside the territory of these states, providing for universal jurisdiction.[30]

Examples of Lacunae in the ICC Complementarity Regime

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.[31] 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.”[32] It is also argued that such ‘subordination’[33] 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.[34] 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.[35] During a parliamentary debate in 2002, the Irish Minister of Foreign Affairs noted in fact that his government saw “no prohibition within the Rome Statute itself to the adoption of certain types of bilateral agreements under Article 98 (2).”[36]

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.’[37] Importantly, the ICC Statute lacks provisions on amnesties, pardons, parole, and sentence commutations.[38] 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.”[39] In 2004 the Chief of Cabinet and Head of the Jurisdiction, Complementarity and Cooperation Division,[40] 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.”[41] 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.[42] 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.”[43]

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.[44] 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.[45] 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.[46] 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.[47] As reflected in the 1969 Vienna Convention, treaties cannot bind non-parties.[48] 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, Germany introduced a proposal that would have granted the Court universal jurisdiction over all core crimes.[49] This would have given the ICC authority to prosecute a crime without securing the consent of any state. This proposal was rejected, as it was perceived that universal jurisdiction would stretch existing interpretations of international law too far and would be politically unacceptable to key states.[50] Strong arguments have been put forward that potential exercise of jurisdiction over nationals of non-party states is a contravention of international law and threatens the legitimacy of the ICC. Consent of the state of nationality of the accused is mandatory, according to this line of argument, if the ICC is to exercise jurisdiction. Otherwise, the exercise of such jurisdiction undermines state sovereignty and is therefore contrary to the principle of complementarity. The United States in particular, maintained that such interpretation of ICC jurisdictional powers violates the principle of pacta tertiis nec nocent nec prosunt, by which a treaty may not create obligations or rights for a state non party to a treaty without that state’s consent. In recent years few local courts have attempted to exercise universal jurisdiction either through the doctrine of erga omnes or through applying domestic laws retroactively. For example, the Dutch Supreme Court ruled in 2001 that the limitations imposed by its Wartime Offences Act in cases where the Netherlands is not involved in an armed conflict do not apply to the repression of violations of the laws and customs of war.[51] However, the exercise of such jurisdiction is sporadic, non-uniform, and generally requires a strong territorial link. In Senegal for instance, the highest court upheld the decision barring criminal proceedings against the accused, a former President of Chad, who was charged with complicity in crimes of torture. The Court ruled that Senegalese courts lacked jurisdiction to prosecute and try aliens present on the territory of Senegal.[52] Another example illustrating the necessary territorial link to the exercise of universal jurisdiction is a decision of a Spanish court not to exercise that jurisdiction with respect to acts of genocide committed in Guatemala. A magistrate had accepted jurisdiction on the basis of a national law which provides for universal jurisdiction over acts of genocide.[53] The Spanish Court noted that Article 6 of the 1948 Genocide Convention provided that criminal jurisdiction over genocide is to be exercised by the states on whose territory genocide was committed or by an international court. It was of the view that Art. 6 of the Convention did not prevent other states to exercise jurisdiction over genocide committed abroad but it had the effect of giving precedence to the territorial state.[54] The Court made a comparison with the ICC principle of complementarity; given that the unwillingness of Guatemala’s authorities to prosecute had not been demonstrated, and that there was no legal impediment to such prosecution under Guatemalan law, the Court concluded that there was no need for a Spanish court to exercise universal jurisdiction.[55]

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)[56] 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.[57] For example, some violations of Protocol I to the 1949 Geneva Conventions[58] are not subject to universal jurisdiction under customary law[59] 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 Special Court for Sierra Leone it was ruled that the recruitment of child soldiers is a crime and a violation of international law.[60] The Defence argued here that the Special Court had no jurisdiction to try the accused for crimes relating to the recruitment of child soldiers under the age of 15 recruited “into armed forces or groups or using them to participate actively in hostilities”[61] due to the fact that this crime was not part of the customary international law at the time relevant to the indictment. The Defence also argued that although the ICC Statute criminalizes the recruitment of child soldiers, it does not codify customary international law. During ICC negotiations, states had different views as to whether this is the case. For example, Sudan’s understanding was that the Court would consolidate customary norms[62] whereas India declared that the function of the Rome Conference was to establish an institution, not to develop and codify substantive international law.[63] The Prosecution on the other hand argued that the crime of recruiting child soldiers was part of international customary law. It argued that international criminal liability for this crime resulted from various factors accumulated over time, and that unlike a national legal system, international law is without a parliament with legislative power, and therefore there cannot be a statute that declares certain activity as criminal under customary international law. In a dissenting opinion, Justice Robertson traced the preparatory work leading to the adoption of the Special Court Statute and argued that the state of law at the relevant time (1996) in respect of child enlistment was unclear to the UN Secretary-General himself.[64]  Importantly, he also pointed that because there was no evidence of national prosecutions of such crimes, it is difficult to find evidence of explicit state practice in criminalizing the crime. According to him therefore, the crime was not part of customary law.[65]

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, Andorra stated it was deeply concerned about acts that affected children.[66] It is worth mentioning however, as an example, that the Canadian Crimes Against Humanity and War Crimes Act 2000 provides that “For greater certainty, crimes described in Articles 6 and 7 and paragraph 2 of Article 8 of the Rome Statute are…crimes according to customary international law. This does not limit or prejudice in any way the application of existing or developing rules of international law”[67] Words ‘for greater certainty’ appear to imply an artificial codification of customary international law that represents a purposive adoption of the ICC Statute rather than uniform state practice.

d) Sentencing: The ICC Statute is in effect silent on the purposes and principles that govern the rules on sentencing.[68] This is the end result of substantive debate on the matter at the 1998 Rome Conference, which focused instead on capital punishment.[69] This ‘omission’[70] 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 Yugoslavia.[71] The Tribunal drew a clear distinction between ‘general prevention (or deterrence), reprobation, retribution as well as collective reconciliation’[72] suggesting that these purposes should provide guidance in determining the appropriate punishment for a crime against humanity, yet no attempt was made to define these purposes, or explore their meaning.[73] The ICTY gave equal weight to retribution and deterrence, but went on to suggest that incapacitation of the dangerous and rehabilitation were also desirable objectives[74] but no consideration was given to defining these objectives in the context of ‘demands for collective retribution personified by state interests and the adopted common law tradition which favours the individualisation of sentences.’[75] The relevant provisions of the ICTY and ICTR Statutes seem to be limited to imprisonment as there is nothing to suggest the application of the death penalty, as well as corporal punishment, imprisonment by hard labour and fines or national commutation of sentences

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 Trinidad and Tobago, Arab states, Nigeria, and Rwanda being in favour of its inclusion. Not only did these states feel that the core crimes should be punished by the maximum penalty, but they feared that the prohibition of the death penalty in the Statute would impact on their domestic laws. The United States, supported by Japan, made an intervention that the principle of complementarity would nevertheless permit countries to apply capital punishment to punish the core crimes. Subsequently, the exclusion of the death penalty in the Statute warranted a provision titled “Non-prejudice to national application of penalties and national law”[76] which was offered as a compromise to those states pushing for the inclusion of the death penalty; it reads that "nothing in this part of the statute affects the application by States of penalties prescribed by their national law."

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[77] 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.[78] 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.”[79] 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.[80] 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.’[81] Neither the ICC Statute nor the Rules of Procedure and Evidence provide for techniques of securing consistency.[82] 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.[83] As with the ad hoc tribunals, this primary sentencing purpose is deterrence.[84] However, the ICC’s effective contribution to deterrence is largely overstated.[85]

The ICC Statute prescribes the sentence of imprisonment for a certain number of years, no longer than thirty, and that of life imprisonment.[86] 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.[87] 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[88] 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.[89] 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.[90] In fact, in most civil law jurisdictions the guilty plea may not be accepted at all.[91] Originally, the ICTY rejected suggestions made by the United States to introduce provisions under the ICTY Rules of Procedure and Evidence encouraging plea-bargaining as a way of eliciting evidence against most important defendants.[92] In arguing that plea-bargaining is incompatible with the unique objectives of international criminal courts, Cassese A. explained:

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.[93]

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[94] 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.[95] 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,[96] 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 crImInal proceedIngs from the ICC to natIonal 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.[97] In the Jankovic Case[98] 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 Serbia and Montenegro, which had a ’coherent judicial system’, or instead be tried before the Tribunal. He also submitted that the severity of the crimes in the indictment did not justify referral to national courts.[99] The Appeals Chamber rejected both his arguments and stated that neither the gravity of the crimes alleged nor the level of responsibility of the accused demanded that this case be brought to trial before the International Tribunals[100] and that the relevant Rule[101] does not impose an obligation on the Tribunal to consider the gravity of crimes charged and that the Tribunal “does not commit an error in law if it bases its decision or referral merely on the individual circumstances of the case…”[102] In an earlier decision, the ICTY also affirmed that under international law it is appropriate to resolve conflict of competing claims for jurisdiction on the basis of the more effective nexus between the crime and the forum state.[103] Some ICC implementing legislations provide that if the state that made a request for extradition in a non-party state, extradition should be denied in favour of the ICC request,[104] but this approach is exceptional and therefore far from representing uniform state practice. The European Committee on Crime Problems also concluded in 2002 that rather than establishing a hierarchical order among jurisdictions “the objective is to devise a practical way to determine, on the face of concrete circumstances of a case, using objective criteria, how better to ensure that justice is done.”[105]

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.[106] In fact, reports indicate increasing understanding and application of international law in national courts.[107] 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.[108] 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,[109] 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.[110] There should be no statutory limitations to that effect.[111] 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. Mexico, for instance, expressed dissatisfaction with the definition of complementarity, as not presenting sufficient opportunity for a state to claim jurisdiction at an early stage and for not giving due weight to views of an interested state.[112] In fact, the ICC Draft Statute provided for the ‘earliest opportunity’ challenge but it left unanswered the question as to what consequences, if any, should flow from a failure of a state to make a timely challenge.[113] Although ICC Article 17 (Issues of Admissibility) states that the Court “shall determine that a case is inadmissible” if the requirements of Article 17 have been met, this phrase must be read in conjunction with the first sentence of Article 19 which requires the Court to satisfy itself as to the jurisdiction, but makes sua sponte determinations of admissibility purely discretionary.[114] In fact, the recent praxis of the Security Council demonstrates how in practice complementarity may be bypassed as SC resolution 1593 on Sudan indicates that international crimes should be investigated and prosecuted under international mechanisms even where states are able and willing to investigate. Such policy on the part of the Security Council in incompatible with the rationale of ICC Article 17 and the essence of the Rome Treaty. Confirming fears of political interference and influence on the ICC, in its recent report on Sudan the Security Council reasoned that

                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.[115]

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. Canada for example, assumed the interpretation of Article 17 (1) (b) as meaning that a state may conduct an investigation and then decide not to proceed or to carry out an investigation and accordingly acquit.[116] Furthermore, the concept of ‘collapse’ of a judicial system should be evaluated from two perspectives: (1) in relation to the need for competent, independent and impartial courts and (2) from the conduct of criminal proceedings.[117] It follows that the requirements of Article 17 (3) will be satisfied if the national legal system has only collapsed in the region where the crime has been committed. It can be predicted with a substantial degree of certainty that this will often be the case in countries involved in an armed conflict or emerging from one. Importantly however, ’unavailability’ does not presume the absence of a national judicial system but merely its considerable unavailability.

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.[118] 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 Trinidad and Tobago provides for an appeal on questions of law, on a national level. Specifically, these appeals refer to the ‘eligibility for surrender’.[119] If such a situation arises, ‘the party may appeal against the determination to the Court of Appeal on a question of law only.’[120] Conversely, attributing right of appeal to the Prosecutor may well be criticised for interfering with the rights afforded to an accused under the ne bis in idem maxim.

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.[121]

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.[122] 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 Macedonia,[123] the ICTY held that the procedure for deferral of cases under its Rules of Procedure and Evidence[124] is to be followed in each case and without exemption. It was maintained that the relevant Rules allowed the Prosecutor to propose that a request for referral be made,[125] and that these were to be interpreted and applied as to allow only a Trial Chamber to decide with finality on the issue. The FYROM government pointed out that such a request for deferral would ‘effectively block domestic courts from initiating any investigation or prosecution with regard to these groups of alleged perpetrators.’[126] In determining the ‘appropriateness’ of the deferral, the Tribunal took into account the principle of concurrent jurisdiction and the primacy of the Tribunal over national courts which did not aim to preclude or prevent the exercise of jurisdiction by national courts and that, on the contrary, national courts should be encouraged to exercise their jurisdiction in accordance with relevant national laws and procedures. Outside the ICC complementarity regime, the presumption in favour of state action is based on the recognition of duties arising out of the aut dedere aut judicare principle.[127]

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.[128] 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’’[129] rather than ‘intermediate’.[130] 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.[131] 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.[132] 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[133] 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.[134] 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.[135]  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.[136]

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.[137] 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.[138] 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,[139] 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 Federal Republic of Yugoslavia[140] and to state jurisprudence from other courts and tribunals in support of its conclusion that the evidence at trial did not establish the crime of genocide. A well-reasoned opinion on this issue, disseminated throughout the legal community, would have been useful as a means of increasing understanding of a complex and controversial subject.[141]

ConclusIon

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’.[142] 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.