THE COMPLEMENTARITY PRINCIPLE REGARDING THIRD STATES AND THE FIGHT AGAINST IMPUNITY UNDER THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

THE COMPLEMENTARITY PRINCIPLE REGARDING THIRD STATES AND THE FIGHT AGAINST IMPUNITY UNDER THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT Remember Benjamin A Doctoral Proposal First supervisor: Second supervisor: Prof. Dr. Gerhard Hafner Prof. Dr. Manfred Nowak 1

1.1. Background of the study The adoption of the Rome Statute of the International Criminal Court on 17 July 1998, and its entry into force on the first of the same month, 2002 1, were hailed as constitutional moments by many in the international law community 2, and described by others as marking a great stride on the road to individual accountability for perpetrators of the most heinous crimes. 3 They were viewed as historic blows to impunity that would ensure that genocide, war crimes and crimes against humanity were a thing of the past. The establishment of the Court was, therefore, regarded as signaling an important step forward, and inaugurating a novel epoch in the enforcement of international criminal law. The Court has jurisdiction over genocide, crimes against humanity, war crimes, and eventually, the crime of aggression. 4 The preamble of the Rome Statute affirms that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international 1 Rome Statute of the International Criminal Court, UN Doc A/CONF. 183/9, (hereafter Rome Statute and ICC respectively). It was adopted on 17 July 1998, as amended by proces-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002, by 120 States at the United Nations Conference of Plenipotentiaries and came into force on 1 July, 2002, upon the 60 th ratification in accordance with Article 126 of the Statute. The concept of a statute, termed as such in international law, is in itself a recent important development. During a testimony to the US Congress, Ambassador David J. Scheffer, the head of US delegation to the ICC negotiations and subsequent Preparatory Commission on the Rules of Evidence and Procedure and Elements of Crimes, elucidated the term statute as follows: When one speaks of creating a court on an international level, it has to have some governing document for the functioning of that court. And as with the Yugoslav tribunal or the Rwanda tribunal, the Security Council adopted statutes or a statute for each tribunal, which is its constitution, basically, the court s own constitution, the basic principles by which the court must function. It is simply a term of art that has arisen in the international sphere, and during the talks for the ICC, it is that basic constitutional document of the court itself which is described as the statute. The treaty itself, when ratified, embodies that statute. And I guess that the best I can say is that it s simply, in U.N. practice, once you have ratified the treaty per se, you are also, of course, adopting as part of the ratification practice or package the statute of the court itself. (Ambassador David J. Scheffer, Statement before the House of International Relations Committee, 26 June 2000), available at LEXIS, Federal News Service (hereinafter ICC). 2 L. N. Sadat and Richard S. Carden, The New International Criminal Court: An Uneasy Revolution (2000) 88 Georgetown Law Journal 381, at 407. 3 A. Cassese, From Nuremberg to Rome: International Military Tribunals to the International Criminal Court, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002), p. 18, states the following about the adoption and entry into force of the Rome Statute: The enactment of the ICC Statute represents the pinnacle of the institutionalization and universalization of measures for the enforcement of international humanitarian law. 4 Articles 5 in conjunction with Articles 6, 7 and8 of the Rome Statute, ibid. Regarding the crime of aggression, the ICC shall exercise jurisdiction once a provision is adopted in accordance with Articles 121 and 123, defining the crime and establishing the conditions under which the Court shall exercise jurisdiction. Thus, the jurisdiction of the Court over the crime of aggression was deferred. 2

cooperation. 5 Further, it indicates a determination of ending impunity with respect to the commission of these most abhorrent crimes of concern to the global community as a whole. 6 To accomplish these goals, the preamble, consequently, recalls that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. 7 Despite the sanguine euphoria, which greeted the establishment of the ICC, it is fundamental to underline the fact that the efficacy of any international criminal court, whether established on an ad hoc or permanent basis, hinges on the willingness and ability of sovereign States to complement its judicial mandate. 8 Thus, national criminal jurisdictions are considered a pivot of international criminal justice system; the most natural places for the prosecution of crimes. This is particularly true in respect of investigation and prosecution of international crimes. 9 Such importance is occasioned by a different position that municipal criminal courts occupy from that of International criminal courts: national criminal courts are an integral cog of domestic legal systems that accord them direct power of coercion, and have the State apparatus at their disposal to effectuate their investigations and to enforce orders and decisions. 10 This is in sharp contrast to international criminal courts, whose efficacy depends on State cooperation to realize similar goals. It is, thus, in the context of this judicial power disparity that the role of national criminal jurisdictions becomes indispensable in the battle against impunity, as conceived in the Rome Statute. From the above assertion, it may, accordingly, be avowed that the role of domestic criminal jurisdictions in the investigation and prosecution of international crimes is not secondary, which would be resorted to when international criminal courts are unavailable. Instead, international law recognizes the crucial role that municipal criminal jurisdictions play in the investigation and prosecution of international crimes. 11 The capacity to prosecute, try and punish the perpetrators of 5 Rome Statute, supra note 1, preambular paragraph 4 6 Ibid., preambular paragraph 5. 7 Ibid., preambular paragraph 6. 8 B. Swart and G. Sluiter, The International Criminal Court and International Criminal Cooperation in H. A. M. von Hebel, J. G. Lammers and J. Schukking, Reflection on the International Criminal Court: Essays in Honor of Addriaan Bos (T.M.C Asser Press, 1999), p. 91. 9 Ibid. 10 Ibid. 11 J. K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford University Press, 2008), p. 7. She further submits that the prosecution of serious crimes was 3

serious crimes resides in the doctrine of State sovereignty. 12 Accordingly, States zealously guard their right to prosecute or not to prosecute crimes falling under their penal jurisdictions. In this regard, national criminal courts can oust the jurisdiction of international criminal courts when the former are available, willing and able to exercise criminal jurisdiction over international crimes. 13 Particular manifestations of the priority conferred on national jurisdictions can be generally gleaned from the concepts of exhaustion of domestic remedies 14, subsidiarity 15, and, in international criminal law corpus, the complementarity principle in the Rome Statute architecture. 16 These principles are designed to empower national courts to exercise jurisdiction first, despite the existence of international courts. One scholar has asserted that the Rome Statute does not affect the States traditional rights and obligations in the prosecution of international crimes. 17 Thus, the creation of many international criminal tribunals does not fundamentally alter the primary role of national penal jurisdictions regarding core offences. In respect of genocide, war crimes and crimes against humanity, national criminal jurisdictions have been traditionally responsible for their investigations and prosecutions. 18 The continuous relevance of domestic legal regimes in the prosecution, trial and punishment of international crimes is informed by a number of reasons. Firstly, the inherent tension between the notions of State sovereignty and criminal justice means that many States are averse to the imposition of an international justice mechanism or the exercise of criminal jurisdiction by another State, and they view it predominantly the duty of national criminal jurisdictions before the entry into force of the ICC Statute. It is further important to highlight that individuals are primarily subject to the national organs of a State. States possess elaborate rules of procedure and evidence and effective law-enforcement agency and centers for imprisonment and rehabilitation. 12 A. Cassese, On the Current trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law (1998) 9 European Journal of International Law 2, at 11. 13 E. M. Borchard, The Diplomatic Protection of Citizens Abroad (The Banks Publishing Company, 1915), pp. 817-18. 14 C. F. Amerasinghe, Local Remedies in International Law (Cambridge University Press, 2005), p. 62. 15 P. G. Carozza, Subsidiarity as a Structural Element of International Human Rights (2003) 97 American Journal of International Law 38, at 63. This principle underlines the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols (1950) ETS; 213 UNTS 221 [hereinafter ECHR). Article 13 of the Convention gives, pursuant to ECHR direct expression of the States obligation to protect human rights first and foremost within their own legal systems. 16 See generally J. Stigen, The Relationship between the International Criminal Court and National Jurisdictions: The Principle of Complementarity (Martinus Nijhoff, 2008). 17 L. Condorelli and S. Villalpando, Referral and Deferral by the Security, in A. Cassese, P. Gaeta and J. R. W. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Vol. 1) (Oxford University Press, 2002), p. 582. 18 Kleffner, supra note 9. 4

as an incursion into their sovereignty. 19 Thus, there is a general consensus that the better way to resolve this tension is to relegate international organizations and other States to the role of facilitating and supporting the development of domestic judicial mechanisms, wherever possible, to ensure that the majority of crimes are prosecuted, tried and punished at national level. 20 Besides accommodating the doctrine of sovereignty of the State in question, this approach enables better access to evidence and witnesses, a greater link to the victims and societies fractured by the crimes in question, as well as building the capacity of the national system to deal with difficult and sensitive crimes. Secondly, the selective nature of international justice system and the limited jurisdiction of international criminal tribunals imply that their capacity to prosecute individuals accused of perpetrating core crimes will be small in number with respect to situations. 21 This means that many situations will remain unattended, and that calls for the role of domestic criminal jurisdictions. Thirdly, resource constraints restrict international criminal mechanisms to try all individuals and all crimes perpetrated within a given situation. Instead, the international criminal tribunals will focus on crimes of sufficient gravity or the senior leaders or individuals regarded as most responsible for the perpetration of crimes. 22 Accordingly, for crimes and individuals outside this category, domestic criminal jurisdictions remain an appropriate response to ensure criminal accountability. This explains the Rome Statute s recognition of the fact that every State bears the duty to exercise its criminal jurisdiction over those responsible for international crimes, if the battle against impunity is to be won. 23 Many international legal regimes establish and clarify the role of domestic criminal jurisdictions in the suppression of genocide 24, crimes against humanity 25 and 19 N. N. Jurdi, The International Criminal Court and National Courts A Contentious Relationship (2011) 13 Melbourne Journal of International Law, at 1 20.Ibid. 21 Ibid. 22 Ibid. 23 Preambular paragraph 6 of the Rome Statute. 24 Convention on the Prevention and Punishment of the Crime of Genocide (adopted on 9 December 1948, entered into force on 12 January 1951), [hereafter the Genocide Convention] 78 UNTS 277. 25 Slavery Convention (adopted on 25 September 1926, entered into force on 9 March 1927) [hereafter the Slavery Convention] 60 LNTS 253. UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted on 10 December 1984, entered into force on 26 June 1987) 1465 UNTS 85 and the International Convention for the Protection of All Persons from Enforced Disappearance 2006, GA Res. 61/177, 20 December 2006, A/RES/61/177; 14 IHRR 582 (2007). 5

war crimes 26 that fall under the Rome Statute. However, a few exceptions existed in respect of this jurisdictional exclusivity, and this was in respect of the establishment of international criminal courts and tribunals or internationalized criminal courts and tribunals. 27 These, nevertheless, remained a fall-back mechanism before the entry into force of the Rome Statute, due to their exceptional and ad hoc character. The customarily exclusive province of national criminal jurisdictions in the investigation and prosecution of core crimes meant that the Rome Statute had to take this pragmatic and functional actuality into consideration regarding the mandate of the ICC. This was particularly germane, considering that such a Court, with an extensive and global jurisdictional reach, inevitably entailed a transfer of criminal jurisdiction from States - a fundamental facet of State sovereignty. In order to avoid a jurisdictional conflict and to assuage serious concerns raised by States over a potential encroachment into their sovereignty, a mechanism had to be instituted to define and establish the jurisdictional interface between the Court and national criminal jurisdictions. This meant a formula that would engender a balance between the preservation of State sovereignty and the imperative of accountability for the 26 1949 Geneva Convention (1) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted on 12 August 1949, entered into force on 21 October 1950) 75 UNTS 31-83 [hereafter the Geneva Convention I]; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted on 12 August 1949, entered into force on 12 October 1950)75 UNTS 85-133 [hereafter the Geneva Convention II]; Geneva Convention (III) relative to the Treatment of Prisoners of War (adopted on 12 August 1949, entered into force on 21 October 1949) UNTS 135-285, [hereafter the Geneva Convention III); Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (adopted on 12 August 1949, entered into force on 21 October 1950) 75 UNTS 287-417 [hereafter the Geneva Convention IV] and 1977 Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted on 8 June 1977, entered into force on 7 December 1978) 1125 UNTS 3-608. 27 This is in respect of some instances in which international criminal courts and tribunals or internationalized criminal courts and tribunals have been utilized to try those accused of committing core crimes. According to C. P. R. Romano, The Proliferation of International Judicial Bodies: The Piece of the Puzzle (1999) 3 New York Journal of International Law and Politics 31, at 709-751, international criminal tribunals must be conceived and understood in this context as judicial bodies set up by a international legal instrument, which uses international criminal law to decide cases before them, and which fulfill a judicial role in as much as the upshot of the process is a legally binding judgment, determining the innocence or otherwise of individuals. The International Military Tribunals for the Trial of the German Major War Criminals, set up according to the Charter of 8 August 1945, 82 UNTS 280 (Nuremberg Tribunal), the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, established in accordance with the UNSC Res. 827 (adopted on 25 May 1993) (ICTY), and the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States, between 1 January 1994 and 31 December 1994, established in accordance with UNSC Res. 955 (adopted on 8 November 1994) (ICTR). 6

perpetrators of genocide, war crimes and crimes against humanity. 28 Thus, the principle had to have a dual function. It is in this context that the principle of complementarity was conceived and formed the foundation of the International Criminal Court design. This is affirmed by the Rome Statute, which provides that the ICC shall be complementary to national criminal jurisdictions. 29 1.2 Statement of the problem The main research question arising from the above state of affairs can be framed as follows: How can a third State to the Rome Statute invoke the complementarity principle to render a case inadmissible before the ICC? This question arises in the following situations: 1. when a suspect, who is a national of a State Party has allegedly committed an ICC crime on the territory of a third State; or 2. when a national of a third State has allegedly committed an ICC crime on the territory of a State Party; or 3. when a national of a State Party has allegedly committed an ICC crime on the territory of another State Party but the victim is a national of a third State; or 4. when the United Nations Security Council, acting under Chapter VII of the UN Charter, in conjunction with Article 13 (b) of the Rome Statute, has referred a situation existing in a third State to the Prosecutor of the ICC. 1.4 Hypothesis This study proceeds on the supposition that third States to the Rome Statute can only invoke the complementarity principle by exercising their criminal jurisdiction over the Article 5 crimes. They can do this by relying on the principles of territoriality, active nationality, passive personality protective or security and universality. Further, third States can only plead the complementarity principle by exercising criminal of jurisdiction over the ICC 5 crimes on the basis of some treaties and rules of customary international law. Furthermore, third States can only invoke the complementarity principle by exercising criminal jurisdiction over the ICC crimes when the United Nations Security Council refers a situation existing in any State, 28 Kleffner, supra note 9, p. 3. 29 Rome Statute, supra note 1, preambular paragraph 10 and Article 1. 7

through a resolution passed under Chapter VII of the UN Charter. This is because the prosecution of international crimes is viewed as cardinal and instrumental in furthering political goals in the contemporary world; namely, the preservation of peace, security and the promotion of human rights. Thus, it will be argued that the complementarity principle does not shield third States from genuinely exercising criminal jurisdiction over the core crimes, but rather requires them to do so. This is in view of the fact that, in order for them to avail themselves of the principle of complementarity before the Court, they must demonstrate that they are genuinely exercising criminal jurisdiction over the ICC crimes. Cast differently, the exercise of criminal jurisdiction over the core crimes is a condition precedent for the invocation of the complementarity principle by third States before the Court. This emanates from the fact that it is only a State which has jurisdiction over a case that can invoke the complementarity principle under Article 17 of the Rome Statute. Thus, they cannot successfully argue before the ICC that they are not bound by the Rome Statute. 1.5 Research objectives This study intends to make a contribution to the scholarly debate pertaining to the invocation of the complementarity principle by third States to the Rome Statute. Other specific objectives of the study are to: Explore and locate the historical and contemporary, legal, philosophical, theoretical and practical facets of the principle of complementarity and identify its rationale in the ICC Statute system. Establish the status of third States to the ICC in the Rome Statute system and the jurisdictional basis for the invocation of the principle. Explore and examine the sources that third States may invoke to exercise criminal jurisdiction over the Article 5 crimes. Explore whether third States can invoke alternative justice mechanisms, inter alia, domestic amnesties, truth commissions and prosecutorial discretions, to claim complementarity and render cases inadmissible. Critique the efficacy of the complementarity principle in ensuring that third States genuinely exercise criminal jurisdiction over the core crimes in fulfillment of the object and purpose of the Rome Statute. 8

Proffer recommendations for the effective operationalization of the complementarity principle with respect to third States to better the international criminal justice system in the battle against impunity. 1.6 Definition of a key concept This study employs one principal term that requires further elaboration and it is complementarity. The principle of complementarity, as encapsulated in paragraph 10 of the Preamble, Article 1 and elaborated in Articles 17 to 20 of the Rome Statute, provides that the case is inadmissible before the ICC if it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. 30 Thus, the concept of complementarity is a legal principle which defines, organizes and promotes jurisdictional sharing and collaborative judicial synergy between the ICC and national criminal jurisdictions in the emerging machinery of international criminal law. 31 balances the supranational power of the Court against the sovereign rights of States to exercise criminal jurisdiction over their own nationals without external interference. It 1.9 Relevance of the study The legal implication of the complementarity principle invocation by third States is a subject that has engaged scholars of various disciplines all over the world due to its centrality in the Rome Statute. Although it has been a subject of intense scholarly debate, its actual implementation by third party States remains unclear. It is, therefore, important to interrogate the subject further and recommend its best actualization. This is in light of the fact that the efficacy of the Court hinges on the said principle, if the world is to end impunity, as conceived in the Rome Statute. 30 Article 17 of the Rome Statute of the ICC, n 1 above. 31 M. A. Newton The quest for constructive complementarity in C. Stahn and M. M. El Zeidy, The International Criminal Court and the Complementarity: From Theory to Practice, Volume I (Cambridge University Press, 2011), p. 304. Newton also argues that the ICC s long-term viability hinges on the maintenance of a cooperative synergy with municipal jurisdictions, both States Parties and other States. The development of the Rome Statute system must be understood in the context of the quest of proponents of international justice to set up a framework for a permanent supranational prosecutorial mechanism, built on the precept that sovereignty of States, can, on certain occasions play second fiddle to the objective of achieving accountability for crimes that attack the commonality of values and order, shared among nations. Some have viewed the complementarity principle not only as an organizing tenet or rule of conflict for the allotment of competencies and resolution of disputes, but bedrock of a broader system of justice. The principle enshrines a legal regime under which the Court and domestic jurisdictions are aimed at supporting each other in their mutual efforts to institutionalize accountability for core crimes. The ICC Prosecutor also underscored the significance of the notion of complementarity as an interdependent, mutually reinforcing international system of justice`. See OTP, Prosecutorial Strategy, 2009-2012, Draft, 18 August 2009, para. 23. 9

1.10 Preliminary literature review Pursuant to article 17 of the Rome Statute, the principle of complementarity has been described as a basis of the ICC Statute system, which has gained the attention of legal and other scholars. Due to miscellany in interpretation, the invocation and implementation of the complementarity principle by non-party States has triggered a heated scholarly discourse. It has presented a multitude of both theoretical and practical challenges. There have been scholarly writings and statements on the subject and a few examples will illustrate this point. The former Chief Prosecutor, Luis Moreno-Ocampo, upon assuming office in 2003, underscored the centrality of the principle of complementarity as follows: 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. 32 Further, the former Prosecutor confirmed the importance of the complementarity doctrine in other public statements as follows: As a general rule, the policy of the Office of the Prosecutor will be to undertake investigations only where there is a clear case of failure to act by the State or States. 33 He further maintained that: The principle of complementarity represents the express will of States Parties to create an institution that is global in scope while recognizing the primary responsibility of States themselves to exercise criminal jurisdiction. The principle is also based on considerations of efficiency and effectiveness since States will generally have the best access to evidence and witnesses. 34 The Prosecutor s statement dovetails with the Court s policy, which underscores the need that, instead of competing with States for jurisdiction, the ICC must urge and facilitate authentic proceedings where feasible, and a consensual division of labour between national courts and the ICC, where possible. As elaborated in article 17 of the Rome Statute, the complementarity principle recognizes the apportioned competence of national and international judicial institutions to assist in ending impunity, thus, advance the cause of international justice and human rights. 35 The principle, thus, shifts the burden of investigating and prosecuting international crimes back to states to meet their legal obligations. According to Easterday, States Parties to the Rome Statute affirm that: The most serious crimes of concern to the international community as a whole must not go unpunished and their effective prosecution must be ensured by 32 L. Moreno-Ocampo, Address at the Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court at The Hague (16 June, 2003), available at http://www.icc-cpi.int.library/organs/otp/030616_moreno_ocampo_english_final.pdf. (Last accessed on 3 November, 2012). 33 Paper on some policy issues before the Office of the Prosecutor, p. 2. 34 Ibid., n 9 above. 35 W. W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice 1(2008) 49, Harvard International Law Journal, at 6. 10

taking measures at the national level and by enhancing international cooperation. 36 El Zeidy submits that, under the principle of complementarity, parties to the Rome Statute assume responsibility for prosecuting genocide, war crimes and crimes against humanity and, thus, protect and promote human rights. Otherwise a State Party s citizens are subject to such prosecutions by the ICC. 37 Newton states that complementarity is a cardinal principle which ensures that the International Criminal Court complements national courts, only stepping in to deal with accusations when states ask it to and when judicial systems are genuinely unwilling or unable to take effective action on a particular case. 38 Brown asserts that the concept of complementarity establishes a judicial safety net in place for rare cases where no national court system is willing or able to investigate allegations of serious international crimes. 39 In the same vein, H. Olasolo advances that: The investigations and/or prosecutions undertaken by the national courts of any State, party or non-state to the Rome Statute, preclude the activation and exercise of its jurisdiction by the ICC in as much as such states have introduced in their national legislation the jurisdictional links (territoriality, nationality of the accused or of the victim, principle of universality) that they are claiming to remain seized with a given matter. 40 Olasolo s observation is quite critical in that, it confirms that non-party States to the Rome Statute can invoke the principle of complementarity to dislodge the admissibility of a situation or a case before the Court. However, he does not fill us with details as to how that would be done and its implication on the relationship between non-party States and the ICC from a position of international law. Hafner cogently submits that it is important to underline the fact that the principle of complementarity requires deferral by the Court to the exercise of national jurisdiction by non-party States to the same extent that it requires deferral to the jurisdiction of parties to the Rome Statute. 41 With regard to Trindade, he asserts that under the principle of complementarity, a state must be given the opportunity to redress an alleged wrong within the framework of its own domestic legal system before its international responsibility can be called into question at the international level. 42 What is emerging from the above introductory literature is the acknowledgement of the centrality and indispensability of the complementarity 36 J. S. Easterday, Deciding the Fate of Complementarity: A Colombian Case Study, Arizona Journal of International and Comparative Law 1(2009) 26, at 53. 37 M. El Zeidy, The Principle of Complementarity: A New Machinery to Implement International Criminal Law 23 (2009) 869 Michigan Journal of International Law, at 898. 38 Newton, n 4 above at 38. 39 B. S. Brown, US Objections to the Statute of the Law International Criminal Court: A Brief Response New York University Journal of International Law and Politics 4(1999) 31, at 855. 40 H. Olasolo in N. Udombana, So Far So Fair: The Local Remedies Rule in the Jurisprudence of the African Commission on Human and Peoples Rights 1(2003) 97 American Journal of International Law at 2. 41 G. Hafner, The Status of Third States Before the International Criminal Court, in M. Politi and P. Nesi, The Rome Statute of the International Criminal Court: A Challenge to Impunity (Aldershot: Ashgate Publishing, 2001) 236, 245. 42 A. A. C. Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law, (Cambridge University Press, 2003), p. 1. 11

principle in the effective functioning of the ICC justice system. However, it is not clear as to how third States can invoke the complementarity principle under the Statute to render cases inadmissible before the Court. 1.11 Proposed research methodology This study will be based on the existing literature in international criminal law and other relevant corpuses of law, such as international human rights, humanitarian law and customary international law. The author will rely on primary sources such as the Rome Statute, various and relevant international legal instruments and case law on the subject under study. He will also consult secondary sources such as books, journal articles and reliable internet sources on international criminal law to buttress his study. He hopes that a critical analysis of these sources will provide insightful, incisive and illuminating knowledge about the conceptual, historical, practical and legal issues on the principle of complementarity. Further, it is hoped that an intensive interrogation and exploration of these sources will establish the legal basis of a possible relationship, if any, between the ICC and third States and the possibility of third States invoking the principle. The researcher also intends to utilize seminars and workshops to present his work in progress and receive invaluable and eyeopening contributions on the subject matter, which will shape the trajectory of this study and, possibly, provide answers to the above questions. 1.12 Delimitations and limitations of the study The study primarily focuses on the possible invocation of the complementarity principle by third States to the Rome Statute and its implications on the relationship between the Court and these States. Thus, it does not dwell on the obvious application of the principle on States Parties to the Rome Statute. However, due to time and space limitations, this study may not touch, in detail, all ancillary aspects of the complementarity principle. However, this will not compromise the quality of the study, since a critical exploration and analysis of the core subject matter under study will be comprehensively delved into. 1.13 Overview of chapters Chapter 1 of the study will establish the legal framework of the complementarity principle. This will include its definition, functions, motivation, and parameters Chapter 2 will examine whether the complementarity principle is invocable by third States. Particular attention will be on the legal consequences of the invocation of the complementarity principle on third States, especially on the exercise of criminal jurisdiction under various jurisdictional heads and other sources of law Chapter 3 will analyze the complementarity test in the context of domestic proceedings that the ICC needs to conduct in order to gauge their efficacy. This will involve the application of the admissibility test to domestic criminal proceedings conducted by third States. Chapter 4 will interrogate whether third States can evade the exercise of criminal jurisdiction through the complementarity principle by invoking possible limits to the 12

exercise of criminal jurisdiction such as amnesties and prosecutorial discretion before the Court. Chapter 5 will be dedicated to findings and recommendations. A preliminary bibliography 1. Books A. A. C. Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law (Cambridge University Press, 2003). A. Cassese, From Nuremberg to Rome: International Military Tribunals to the International Criminal Court, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002). B. Swart and G. Sluiter, The International Criminal Court and International Criminal Cooperation in H. A. M. von Hebel, J. G. Lammers and J. Schukking, Reflection on the International Criminal Court: Essays in Honor of Addriaan Bos (T.M.C Asser Press, 1999). C. F. Amerasinghe, Local Remedies in International Law (Cambridge University Press, 2005). E. M. Borchard, The Diplomatic Protection of Citizens Abroad (The Banks Publishing Company, 1915). G. Hafner, The Status of Third States Before the International Criminal Court, in M. Politi and P. Nesi, The Rome Statute of the International Criminal Court: A Challenge to Impunity (Aldershot: Ashgate Publishing, 2001). H. A. M. von Hebel, J. G. Lammers and J. Schukking, Reflection on the International Criminal Court: Essays in Honor of Addriaan Bos (T.M.C Asser Press, 1999). J. K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford University Press, 2008). L. Condorelli and S. Villalpando, Referral and Deferral by the Security, in A. Cassese, P. Gaeta and J. R. W. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Vol. 1) (Oxford University Press, 2002). M. A. Newton The quest for constructive complementarity in C. Stahn and M. M. El Zeidy, The International Criminal Court and the Complementarity: From Theory to Practice, Volume I (Cambridge University Press, 2011). M. Zeidy, The Principle of Complementarity in International Criminal Law (Martinus Nijhoff Publishers, 2008). 13

S. M. H. Nouwen, Fine-tuning complementarity in Bartram B. Brown, Research Handbook on International Criminal Law (Edward Elgar Publishing, 2011). W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2010). 2. Journals articles A. Cassese, On the Current trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law (1998) 9 European Journal of International Law 2 B. S. Brown, US Objections to the Statute of the Law International Criminal Court: A Brief Response, New York University Journal of International Law and Politics 4 (1999) 31. C. P. R. Romano, The Proliferation of International Judicial Bodies: The Piece of the Puzzle (1999) 3 New York Journal of International Law and Politics 31 H. Olasolo in N. Udombana, So Far So Fair: The Local Remedies Rule in the Jurisprudence of the African Commission on Human and Peoples Rights American Journal of International Law 1 (2003) 97. J. S. Easterday, Deciding the Fate of Complementarity: A Colombian Case Study, Arizona Journal of International and Comparative Law 1(2009) 26. L. N. Sadat and Richard S. Carden, The New International Criminal Court: An Uneasy Revolution (2000) 88 Georgetown Law Journal 381. M. A. Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court (2001) Milton Law Review 20 167. N. N. Jurdi, The International Criminal Court and National Courts A Contentious Relationship (2011) 13 Melbourne Journal of International Law M. Benzing, The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity (2003) Max Planck Yearbook of United Nations Law 7. P. G. Carozza, Subsidiarity as a Structural Element of International Human Rights (2003) 97 American Journal of International Law 38. W. W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice Harvard International Law Journal 1(2008). 3. International instruments and Papers 14

Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted on 8 June 1977, entered into force on 7 December 1978) 1125 UNTS 3-608. Fifth Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593 of 2005. Convention on the Prevention and Punishment of the Crime of Genocide (adopted on 9 December 1948, entered into force on 12 January 1951). Rome Statute of the International Criminal Court of 17 July, 1998. The Treaty of Versailles of 28 June 1919. Geneva Convention (1) of 1949 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted on 12 August 1949, entered into force on 21 October 1950) 75 UNTS 31-83; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted on 12 August 1949, entered into force on 12 October 1950)75 UNTS 85-133; Geneva Convention (III) relative to the Treatment of Prisoners of War (adopted on 12 August 1949, entered into force on 21 October 1949) UNTS 135-285; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (adopted on 12 August 1949, entered into force on 21 October 1950) 75 UNTS 287-417. Slavery Convention (adopted on 25 September 1926, entered into force on 9 March 1927). Vienna Convention on Consular Relations of 1969. 4. Cases ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), (14 February 2002). LaGrand case (Germany v. United States of America), Judgment of 27 June 2001, ILM 40 (2001). The Prosecutor v. Ahmed Muhammad Harun and Ali Muhammad Al Abd-Al-Rahman ( Ali Kushayb ) (2007). 5. Internet sources L. Moreno-Ocampo, Address at the Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court at The Hague (16 June, 2003), available at http://www.icc-cpi.int.library/organs/otp/030616_moreno_ocampo_english_final.pdf. (Last accessed on 3 November, 2012). 15