Complementarity.

• Position: Report of the International Law Association

This report provides a preliminary analysis of the complementarity provisions of the most recent International Law Committee (ILC) Draft Statute of the International Criminal Court (ICC). This report is intended to stimulate discussion of the treatment of complementarity by the ILC, and is not intended to reflect any formal conclusion of the International Law Association (ILA) Working Group.

1. BACKGROUND

   The principle of "complementarity" concerns the allocation of jurisdiction between domestic courts and the ICC. The scope of "complementarity" -- i.e., the extent to which a domestic court may claim exclusive jurisdiction over a case implicating the Court's powers and vice-versa -- is relevant to any prosecution of a person alleged to have committed an international crime, who is simultaneously subject to the domestic jurisdiction of a state respecting that same crime.

   Because complementarity questions can arise only in cases where both the Court and a State have not only the capacity, but the intent to prosecute the same crime, complementarity presupposes that there is a subset of "interested States" with an interest in prosecuting these cases. States which may have an interest in applying their own domestic laws and procedures in such cases include: (1) the State in which the crime occurred; (2) the State(s) in which the victim(s) and/or the accused reside; (3) the State(s) in which the victim(s) and/or the accused resided at the time of the crime, and/or, (4) the State(s) of nationality for the victim(s) and/or the accused. To resolve whether any of these States may claim precedence over the prosecution of an international crime, the ILC Draft Statute must address five issues.

   1. What factors define an "interested State" for purposes of challenging ICC jurisdiction;

   2. As between two competent forums, the ICC and the domestic court of an interested State, which forum has priority;

   3. What standard shall apply for determining the competency of a domestic forum;

   4. Who has the burden of proof in determining whether a domestic forum is competent;

   5. What institution will ultimately resolve whether a domestic forum is competent, and at what stage of the proceedings. These issues are addressed with varying degrees of clarity in the ILC Draft Statute.

2. THE ILC DRAFT STATUTE

   The principle of complementarity appears in the preamble of the ILC draft statute, and is implicated by other provisions of the draft.(1) The third paragraph of the preamble of the ILC draft statute provides, essentially, that the ICC may assert jurisdiction only where domestic court jurisdiction is not "available," or domestic court proceedings would be "ineffective." "[The] court is intended to be complementary to national criminal justice systems in cases where such trial procedures may not be available or may be ineffective."(2) The Statute as drafted thus reflects a general consensus that the ICC should not supplant national judicial authorities, but may only complement these authorities.

   As discussed in more detail below, although there is agreement that the ICC Statute should give preference to "effective" domestic forums over the ICC, there is significant disagreement about how this principle will be accomplished.

   The Draft Statute provides that the ICC may be seized with a matter or investigation based upon either a State complaint or a referral by Article 25 of the Security Council. Following such an investigation, the ICC prosecutor would have authority to issue an arrest warrant. Under Article 53, a State party served with a warrant for the arrest and transfer of an accused international criminal "shall ... take immediate steps to arrest and transfer the accused to the Court."(3) Depending upon the circumstances, "a State may have discretion to extradite the accused to a requesting State or refer the case to its competent authorities for the purpose of prosecution."(4) A State party may, within 45 days of receiving such a request, file a written application to set aside the request.(5)

   Outside of States challenging requests for arrest and transfer, the Draft Statute does not directly address the issue of which States are "interested" for purposes of challenging the Court's jurisdiction. As a general matter, Article 53 confers jurisdiction to a State in which the accused resides at the time an investigation begins. Article 21 suggests that domestic jurisdiction is based upon traditional international law concepts, and thus a State may assert jurisdiction based either on territoriality (i.e., if the accused is within its borders, or if the act occurred within its borders) or based on nationality (if the accused is a national).

   To the extent that a party with jurisdiction wishes to challenge the Court's jurisdiction on the ground that an "effective" and "available" trial procedure exists within its domestic system, that party must proceed under Article 34. Article 34 provides that a State may challenge the ICC's jurisdiction only prior to or at the commencement of the trial.(6)

   Article 35 provides that the Court shall decide the ultimate question of whether a domestic forum affords an "effective" and "available" procedure for prosecuting the crime; the Court should refrain from proceeding with the matter if a State has investigated a matter and made an "apparently well-founded" decision not to proceed, or if the matter "is under investigation by a State which has or may have jurisdiction over it, and there is no reason for the Court to take further action."(7) The Court must give the State complainant or the accused a hearing on these issues.(8)

   Finally, the Act provides that a decision by the Court to exercise jurisdiction will have preclusive effect against domestic proceedings for the same offense.(9) Article 42(1) contains a "non his in idem" provision, which protects a person tried by the Court from "double jeopardy" by barring subsequent prosecution in domestic fora for the same international crimes.

3. GENERAL CONCERNS REGARDING THE CURRENT DRAFT

   The phrasing of the ILC's complementarity provisions has been criticized for failing to clarify: (1) the extent to which the ICC may claim jurisdiction over an action arguably within the competence of a domestic court; (2) the burden of proof, timing, and standard for deciding that a domestic judicial authority is unavailable or ineffective; and (3) the effect of such a determination upon domestic court proceedings. These general concerns are addressed in turn.

   1. The Authority of the ICC to Determine the Adequacy of State Forums

      Some States, including the United States, China, and Japan, have expressed concern that -- as presently written -- the ICC could unilaterally determine that it has a superior capacity to prosecute crimes...