Critically assess the principle of complementarity in the development of the International Criminal Court’s Jurisdiction.
This paper will explain and comment upon the principle of complementarity under the Statute of the International Criminal Court. It will contrast the jurisdiction of the ICC to universal jurisdiction and national jurisdiction over international crimes. The essay will in particular assess the arguments and decision over jurisdiction in the Libya case (Al Senussi and Gaddafi) at the ICC. It will reflect on the problem of resolving conflicts over the interpretation of article 17 of the Statute. The paper will take into account the view of Frederick Megret and Marika Giles Sampson, Luc Reydams and Carsten Stahn.
Indicative Reading:
Robert Cryer, Hakan Friman, Darryl Robinson, Elizabeth Wilmshurst, An Introduction to International Criminal Law and Procedure, (Cambridge: Cambridge University Press, 2010) chapters 3 and 4.
Luc Reydams, Universal Jurisdiction: International and Municipal Perspectives (Oxford: Oxford University Press, 2003).
Stephen Macedo, Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law (Philadelphia: University of Pennsylvania Press, 2006).
Carsten Stahn, Libya, the International Criminal Court and Complementarity: A test for ‘Shared Responsibility, Journal of International Criminal Justice, Vol. 10, No. 2 (2012), 325-349.
Frederic Megret and Marika Giles Samson, Holding the Line on Complementarity in Libya: The Case for Tolerating Flawed Domestic Trials, Journal of International Criminal Justice, Vol. 11, Issue 3 (2013), 571-589.
Nabil Nidal Jurdi, The International Criminal Court and National Courts: A contentious relationship (Aldershot and Burlington: Ashgate, 2011).
it is a complex case and as is the first one on the application of article 17 it is alas very interesting. As you know article 17 deals with admissibility and negotiates the relationship between international and national jurisdiction – in other words the parameters of complementarily. In the Libya case – I assume you are writing about the proceedings that were published in May 2014 – the court has to decide on the claims of the Libyan authorities and that meant it had to satisfy itself that of the scope of the article. The provision falls into three: (1) the identification of three situations in which a case would not be admissible; (2) the way that the court assess the unwillingness of state to try a case and (3) an assessment of the capacity of the national legal system to act. What of course is important to grasp is that it is the ICC which is making these determinations. In other words at the end of the day it is the ICC which sets the relationship between national and international jurisdiction – which means that complementarity is in the hands of international jurisdiction. In the Gaddafi case the court is therefore assessing the ability of the Libyan authorities to exercise jurisdiction by applying these provisions. It would be worthwhile comparing the judgment on Gaddafi with the part of the judgment that deals with Sanussi as this helps us understand the way the court decides on the issues. The essay is therefore a close textual analysis of the judgment.
