Description : Presents a study of the historical antecedents of the principle of complementarity. This work draws upon the first efforts at international prosecution, after the First World War, and then traces the evolution of the concept through the drafting of the 1937 treaty on terrorism, and the post-Second World War tribunals.
Description : The principle of complementarity is the corner stone for the operation of the International Criminal Court (ICC). It organizes the functional relationship between domestic courts and the ICC. This is the first careful study of the historical antecedents of the principle of complementarity, which has become so central to the operation of contemporary international criminal law. The study draws upon the first efforts at international prosecution, after the First World War, and then traces the evolution of the concept through the drafting of the 1937 treaty on terrorism, and the post-Second World War tribunals. It examines in an exhaustive manner the work of the International Law Commission that led to the drafting of the Rome Statute of the International Criminal Court, up to the deposit of the draft statute with the UN General Assembly in 1994. It considers the travaux préparatoires of the Rome Statute itself, in a most thorough manner. It also examines the post-Rome developments, particularly the original interpretations of the relevant provisions of the Statute by both the Office of the Prosecutor and the Pre-Trial Chambers. This is a study that is of intrinsic historical interest, but also one that may help to guide interpreters of the Statute in the years to come.
Description : This research work focuses on the possible impact of the principle of complementarity on the implementation of international criminal law in China as a third party state and the future prospects of the relationship between China and the ICC based on this analysis. By so doing, it aims to contribute to the discourse on complementarity for both scholars and practitioners.0.
Description : This book analyses how the complementarity regime of the ICC’s Rome Statute can be implemented in member states, specifically focusing on African states and Nigeria. Complementarity is the principle that outlines the primacy of national courts to prosecute a defendant unless a state is ‘unwilling’ or ‘genuinely unable to act’, assuming the crime is of a ‘sufficient gravity’ for the International Criminal Court (ICC). It is stipulated in the Rome Statute without a clear and comprehensive framework for how states can implement it. The book proposes such a framework and argues that a mutually inclusive interpretation and application of complementarity would increase domestic prosecutions and reduce self-referrals to the ICC. African states need to have an appropriate legal framework in place, implementing legislation and institutional capacity as well as credible judiciaries to investigate and prosecute international crimes. The mutually inclusive interpretation of the principle of complementarity would entail the ICC providing assistance to states in instituting this framework while being available to fill the gaps until such time as these states meet a defined threshold of institutional preparedness sufficient to acquire domestic prosecution. The minimum complementarity threshold includes proscribing the Rome Statute crimes in domestic criminal law and ensuring the institutional preparedness to conduct complementarity-based prosecution of international crimes. Furthermore, it assists the ICC in ensuring consistency in its interpretation of complementarity.
Description : Striking a balance between peace and justice has long been debated by scholars and practitioners. There has been definite progress in a world in which blanket amnesties were at times granted with little hesitation. There is a growing understanding that accountability has both pragmatic and principled arguments in its favor. Practical arguments as much as shifts in norms have created a situation in which the choice is increasingly seen as "which forms of accountability" rather than a stark one between peace and justice. The Colombian Justice and Peace Law 975 and its implementation offer an interesting and unique approach to dealing with the international crimes committed in Colombia’s decades-long armed conflict. Yet, will this approach suffice with regard to Colombia’s obligations under international law to investigate and prosecute international crimes? Does it meet the standards of the ICC, which has been monitoring the Colombian situation for some time now? In particular, does it pass the complementarity test laid out in the ICC statute or will the ICC have to intervene in Colombia to enforce international criminal law?
Description : The drafters of the ICC’s founding document, the Rome Statute, foresaw what would become the main challenge to the Court’s legitimacy: that it could violate national sovereignty. To address this concern, the drafters added the principle of complementarity to the ICC’s jurisdiction, in that the Court’s province merely complements the exercise of jurisdiction by the domestic courts of the Statute’s member states. The ICC honours the authority of those states to conduct their own trials. However, if the principle of complementarity is to be applied, states must ensure that their own judicial systems and trials are consistent with international standards of independence and fairness. In addition, for complementarity to work, the ICC must be willing to actively support, embrace, and implement the principle. If the Court holds on too tightly to a self-aggrandising view of its role in promoting international justice, then it will lose all credibility in the eyes of nation states. Finally, the international community, in calling on states to address war crimes committed within their borders, must provide the financial, technical, and professional resources that many struggling states need in this endeavour. This book sets forth several innovative recommendations to fulfil these goals so as to make future domestic war crimes courts work more effectively.
Description : This book provides a brief overview of the historical roots of the International Criminal Court and explains the unique character and purpose of the principle of complementarity within the Rome Statute and its other constituent instruments. The author also examines article 17, the core provision in relation to complementarity, and describes its application in different phases of the proceedings before the ICC. This study tries to highlight the problematic issue of amnesties, which is not covered by the respective legal instruments, and questions the political and judicial implications of complementarity. This book is intended as a practical handbook rather than a theoretical inquiry.
Description : Academic Paper from the year 2017 in the subject Law - Comparative Legal Systems, Comparative Law, grade: 1.0, University of Pretoria, language: English, abstract: This study seeks to establish how the legal and institutional framework for positive complementarity may be effectively implemented. It is argued that the existing legal and institutional framework in respect of the effective combatting of impunity is largely unsatisfactory. The evolution of the principle of complementarity, in the context of the Rome Statute, is explored with emphasis on the theoretical constraints on the principle which, in turn, raise practical challenges. The analysis provides a theoretical background to the conceptualisation of positive complementarity. The study traces the evolution and development of the concept of positive complementarity, examining its characteristic features and attributes, and the possibilities and opportunities the concept presents for the effective combatting of impunity. It examines the various scholarly arguments and propositions advanced to explain the concept of positive complementarity, and analyses the attendant challenges and limitations. It is noted that there is no fixed and universally acceptable definition of positive complementarity. It is therefore argued that there is a need for the establishment of a coherent legal and institutional framework for positive complementarity. In this light, appropriate policy alternatives and considerations both domestically and internationally, are considered. On the international level limitations characterising the current institutional framework of the Secretariat of the Assembly of States Parties (ASP Secretariat) are identified. It is argued that a fundamental restructuring of the ASP Secretariat is essential and measures to restructure the ASP Secretariat in order to reinforce its effectiveness in fulfilling its mandate on positive complementarity are identified. At the domestic level, the various aspects of implementing legislation are discussed. In conclusion, the establishment of an independent office to address positive complementarity and revitalise the institutional framework within the legal structures of the ASP Secretariat, is examined. The study envisages that the proposed institutional framework for the ASP Secretariat, if implemented, would effectively support the national jurisdictions of state parties in their implementation of the concept of positive complementarity. This study represents an unequivocally original contribution to knowledge and research.