Court, as a consequence of the regular functioning of national ... When a State challenges the admissibility of a case i
What is the...
Complementarity Principle? Complementarity is the answer to the question:
If both a State and the International Criminal Court have jurisdiction, who gets to exercise it over a particular situation? The principle of complementarity recognizes that States have the first responsibility and right to prosecute. However, when the State fails to exercise this jurisdiction, a case becomes admissible before the International Criminal Court (ICC). This distinguishes the ICC from international criminal tribunals, such as those for the former Yugoslavia and Rwanda (ICTY and ICTR), which both have primary jurisdiction over cases. The objective of the principle is to create an international system in which each national system responds effectively to mass atrocity crimes, with the ICC only intervening when necessary in order to ensure that these crimes never go unpunished.
g P r in c ip le G s Complementarity
“As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.”
Vigilance
Partnership
in u id
Luis Moreno-Ocampo, former prosecutor of the ICC
Partnership
Vigilance
The idea is to encourage States to effectively investigate and prosecute mass atrocity crimes themselves.
The Office of the prosecutor should be able to verify that States are indeed cooperating and living up to their obligations.
The Office of the Prosecutor of the ICC can provide national governments with support and advice on how to handle certain cases. The Office and the State can also agree to a division of labor, allowing the ICC to focus solely on the cases which the national government isn't in a position to handle.
The idea of partnership shouldn't take away from the Court's effectiveness and ability to function. Rather, the ICC should remain vigilant. Perpetrators of mass atrocity crimes must be held accountable and, if States are not genuinely trying or able to do so, then the Court should intervene to fight against impunity.
Does the ICC have jurisdiction?
Just having jurisdiction is not enough...
Can jurisdiction be exercised ?
There are three situations in which the ICC can exercise its jurisdiction:
Has there been a UNSC deferral ?
According to article 16 of the Rome Statute, the United Nations Security Council can defer a situation for 12 months if it acts under Chapter VII of the UN Charter. A deferral means that the prosecutor is barred from investigating or prosecuting individuals in a certain situation. The deferral can be renewed indefinitely.
Is the case admissible ?
1. The situation is referred to it by the State concerned 2. The situation is referred to it by the UN Security Council 3. The Prosecutor has decided to initiate an investigation into the situation
When a State challenges the admissibility of a case it must show that: 1. It is prosecuting "the same individual and the substantially the same conduct as alleged in the proceedings before the Court" 2. That the domestic proceedings are genuine, meaning that the State is able and willing to investigate and prosecute the individual
Admissibility contested! Two examples: Libya On 1 May 2012, Libya challenged the admissibility of the cases against Saif Al-Islam Gaddafi and Abdullah Al-Senussi. The Court eventually found that the case against Al-Senussi was inadmissible at the ICC because the Libyan authorities were both willing and able to prosecute him. The case against S. Gaddafi, however, was declared admissible because the Libyan government was not in a position to prosecute him.
Kenya On March 30 2011, Kenya challenged the admissibility of the cases against William Ruto, Joshua Sang, Francis Muthaura, Uhuru Kenyatta, Hussein Ali, and Henry Kosgey. This was the first admissibility challenge the Court had to decide on. The Court found that the cases were admissible at the ICC because the investigations that were taking place in Kenya did not focus on the same individuals.
Sources • Agirre, Xabier, A. Cassese, R. E. Fife, H. Friman, C. K. Hall, J. T. Holmes, J. Kleffner et al. "Informal expert paper: The principle of complementarity in practice." (2003) • International Criminal Court, https://www.icc-cpi.int/ • Coalition for the International Criminal Court, http://www.iccnow.org/ • International Justice monitor, http://www.ijmonitor.org/
