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1

The Emerging System of

International Criminal Justice

I. Introduction

This chapter first considers the role of national courts in suppressing international
crimes, including the role of national courts acting on the basis of universal
jurisdiction. It then turns to an assessment of the development of international
criminal institutions, in particular the ad hoc international criminal tribunals for
the former Yugoslavia and Rwanda, and the International Criminal Court (ICC).
Specifically, it considers the relationship between the national courts and these
international mechanisms, namely the principles of primacy and complementa-
rity. The chapter concludes that a key feature of the international criminal justice
system is the tension between sovereignty and the drive to ensure international
criminal accountability, although various principles have emerged to modify its
effects. In particular, the current system of criminal law evidences a preference for
trials before national courts, with international institutions intervening only in
limited circumstances, generally where the territorial state is unable or unwilling to
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

try offenders. This chapter also confirms that the system of international criminal
justice is far from comprehensive and, even following the establishment of the
ICC, several potential impunity gaps exist. The final section of this chapter consid-
ers the possible roles of hybrid and international tribunals in the system of interna-
tional criminal justice. It argues that the establishment of mixed tribunals may
enable a greater number of national trials to proceed by supplementing the national
courts with international assistance. Second, hybrid and internationalised tribu-
nals may serve to fill the possible impunity gaps identified in this chapter, by allow-
ing a further mechanism for securing accountability. Third, the creation of hybrid
and internationalised tribunals may shift the focus in international criminal justice
away from a ‘competition’ between international mechanisms and national courts,
allowing an approach that concentrates more on cooperation between institutions
and, in appropriate cases, agreement on ‘burden sharing’ and division of labour
between national courts and international criminal institutions.

Williams, Sarah. Hybrid and Internationalised Criminal Tribunals : Selected Jurisdictional Issues, Bloomsbury Publishing Plc,
2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/hud/detail.action?docID=1772840.
Created from hud on 2020-08-17 08:08:10.
National Prosecution of International Crimes 11

II. Prosecution of International Crimes before

Domestic Courts

A. National Jurisdiction for International Crimes

For many years, states have considered criminalisation of certain conduct and the
enforcement of such criminal law as an inherent aspect of state sovereignty. The
exercise of criminal jurisdiction has been traditionally considered within the pri-
mary, if not the exclusive, domain of the state. Criminal jurisdiction may be
defined as describing ‘the limits of the legal competence of a state or other regula-
tory authority . . . to make, apply, and enforce rules of conduct upon persons’.1 As
Berman notes, ‘[C]riminal jurisdiction is essentially a jurisdiction to prescribe
and to punish’.2
Three ‘types’ of jurisdiction can be distinguished: jurisdiction to prescribe,
jurisdiction to enforce, and jurisdiction to adjudicate.3 Jurisdiction to prescribe –
or legislative jurisdiction – is the authority of a state to prescribe rules, while juris-
diction to enforce is the authority of a state to enforce those rules.4 The third
category of jurisdiction, jurisdiction to adjudicate, refers to ‘the right of courts to
receive, try and determine cases referred to them’.5 However, the authority of
national courts to adjudicate such claims follows from the jurisdiction to pre-
scribe. The organs of the court in question exercise the jurisdiction conferred on
them (either by states in the case of national courts or the Security Council in the
case of international courts) and the court will also interpret the extent to which
such jurisdiction has been conferred. Accordingly, jurisdiction to adjudicate is
not considered further as a separate category of jurisdiction.
It is now largely accepted by states that jurisdiction to prescribe must be exer-
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

cised based on principles of jurisdiction recognised in public international law.6

1
V Lowe and C Staker, ‘Jurisdiction’ in M Evans (ed), International Law, 3rd edn (Oxford, Oxford
University Press, 2010) 313.
2
F Berman, ‘Jurisdiction: The State’ in P Capps, M Evans and S Konstadinidis (eds), Asserting
Jurisdiction: International and European Legal Approaches (Oxford, Hart Publishing, 2003) 5. Jurisdiction
also applies in a civil context, although there is some debate as to whether the rules to be applied are the
same. This thesis will only examine criminal jurisdiction.
3
R O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2 Journal of International
Criminal Justice 735.
4
Unlike jurisdiction to prescribe, jurisdiction to enforce is always territorial, unless the consent of
the third state is obtained.
5
Lowe and Staker, n 1, 317.
6
The contrary conclusion of the Permanent Court of International Justice in the Lotus case, which
provided that states may exercise their jurisdiction to persons, property and acts outside of their territory
subject only to a specific rule prohibiting the exercise of such jurisdiction, has been discredited and is
now considered not to represent customary international law. See: Lotus (SS) Case (France v Turkey) PCIJ
Rep Series A No 9 (Lotus case) 19. For further discussion see Lowe and Staker, n 1; M Akehurst,
‘Jurisdiction in International Law’ (1973) 46 British Yearbook of International Law 145; R Cryer,
Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge,
Cambridge University Press, 2005); and C Ryngaert, Jurisdiction in International Law (Oxford, Oxford
University Press, 2008) ch 2.

The most important principle is that of territorial jurisdiction, whereby a state

may exercise jurisdiction in respect of acts committed upon its territory. The ter-
ritorial principle also includes ‘subjective’ and ‘objective’ territorial jurisdiction,
so that the state may exercise jurisdiction where one of the constituent elements
of the offence occurs within its territory.7 In recent years, at least in the human
rights context, states have also been found to exercise jurisdiction where they have
control of the territory of another state, either due to military occupation or oth-
erwise.8 This, however, extends beyond the classic view of territorial jurisdiction
and is linked to the notion of jurisdiction incorporated in the relevant treaties,
rather than an expansion of the principle of territorial jurisdiction. Nationality of
the offender is also an accepted basis for the exercise of jurisdiction by a state and
is increasingly relied upon as a basis for the exercise of extraterritorial jurisdiction
by several states.9 Jurisdiction based upon the nationality of the victim – the
so-called ‘passive personality’ principle – is also relied upon by states, but may
have found general acceptance only in relation to certain categories of crimes, in
particular terrorism.10 The protective principle permits the exercise of jurisdiction
where the offence in question is directed at the ‘essential interests of the State’.11
Offences prosecuted under this principle generally relate to national security or a
threat to the existence of the state, but may also include offences such as counter-
feiting currency.12 The final basis for the exercise of criminal jurisdiction is the
principle of universal jurisdiction, discussed further below. To this list must be
added jurisdiction based on the ‘flag’ state of a vessel or aircraft and the growing
reliance upon treaty-based jurisdiction, through which states are permitted, or in
some situations obliged, to legislate extraterritorially, even in the absence of a tra-
ditional basis of jurisdiction.
Given these different bases of jurisdiction, it is possible that one or more states
may assert jurisdiction in respect of a particular act, and that there may be valid,
but competing, jurisdictional claims. Unlike private international law and the laws
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

of many national legal systems, international criminal law has not, as yet, devel-
oped rules allocating criminal jurisdiction between states. At best, and as further

7
Lotus case, 23. The territorial principle may also include the so-called ‘effects doctrine’ whereby a
state may exercise jurisdiction where the act in question has an effect within its territory: see V Lowe,
‘US Extraterritorial Jurisdiction: the Helms-Burton and D’Amato Acts’ (1997) 46 International
Comparative Law Quarterly 378.
8
Banković and Others v Belgium and 16 Other Contracting States (Admissibility Decision)
Application No 52207/99, European Court of Human Rights, Grand Chamber, ECHR 2001 XII (12
December 2001).
9
P Arnell, ‘The Case for Nationality-Based Jurisdiction’ (2001) 50 International Comparative Law
Quarterly 955. More recently, states have also relied on other criteria besides nationality, such as resi-
dence. See, eg, the International Criminal Court Act 2001 (United Kingdom).
10
See United States v Yunis (1991) 30 ILM 403; United States v Yousef 327 F.3d 56 (2002) (US 2nd Cir.),
both concerning terrorist offences. Three judges of the ICJ have noted that ‘[p]assive personality . . . today
meets with relatively little opposition, at least as far as a particular category of offences is concerned’: Case
Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (the Arrest
Warrant case) (Separate Opinion of Judges Higgins, Kooijmans and Buergenthal) [2002] ICJ Rep 3, 11.
11
Lowe and Staker, n 1, 325.
12
Attorney-General of the Government of Israel v Eichmann (1961) 36 ILR 5.

detailed in following sections, there is a preference for trials before domestic courts,
in particular the courts of the territorial state (ie the state where the act occurred).
This preference reflects certain advantages of domestic proceedings. First, it is
based on and respects the traditional international law notions of state sovereignty
and the principle of non-interference in the internal affairs of a state.13 Second,
domestic trials are generally considered to be the most practical option. Victims,
defendants, witnesses and evidence will normally be found within that state. Third,
domestic trials are argued to be the best means of conveying a sense that society is
investigating the impact of the individual’s actions on the local populace – those
most directly affected – and that society is dispensing ‘justice’ to the accused. This
permits a sense of ownership of the judicial process, which may make a contribu-
tion to the rehabilitation of the accused and reconciliation between victim and
offender. Fourth, domestic trials, even in respect of cases that are particularly com-
plex or significant, may improve the capacity of the judiciary and public confi-
dence in the legal system. Finally, domestic proceedings enable the territorial state
to incorporate a bespoke approach to criminal justice, allowing a greater ability to
tailor the design of the system to the needs of the situation. This may include intro-
ducing new legal mechanisms, the use of traditional justice approaches, or amend-
ments to the domestic substantive or procedural law.

B. Is There an Obligation to Exercise Domestic Criminal

Jurisdiction for International Crimes?

Where a state has exercised its prescriptive jurisdiction so as to criminalise certain

conduct occurring within its territory, it will generally confer jurisdiction to try
individuals suspected of such conduct on its national courts. This raises the ques-
tion as to whether that state is then required to exercise that jurisdiction in a given
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

situation; ie must that state enforce violations of its criminal law? The ability of a
state to criminalise certain conduct and to punish violations of its law is generally
considered to be a right rather than an obligation; that is, there is no duty to try
individuals accused of crimes, even international crimes.14
However, this general position may be varied by treaty. Several treaties provide
that states parties must provide effective penal sanctions for acts prohibited by the
treaty.15 States are required either to prosecute alleged violations of those laws (ie

13
Charter of the United Nations (signed 26 June 1945, entered into force 24 October 1945) 1 UNTS
XVI, art 2(7).
14
R Cryer, H Friman, D Robinson and E Wilmshurst, An Introduction to International Criminal Law
and Procedure, 2nd edn (Cambridge, Cambridge University Press, 2010) 69–73.
15
Treaties that incorporate this principle include the Geneva Conventions and Additional Protocol
I to the Geneva Conventions in relation to grave breaches only. See Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12
August 1949, entry into force 21 October 1950) 75 UNTS 31 (GCI), arts 49, 50; Geneva Convention for
the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea (adopted 12 August 1949, entry into force 21 October 1950) 75 UNTS 85 (GCII) arts 50 and 51;

to exercise criminal jurisdiction) or to extradite a suspect to a state that is willing

to exercise jurisdiction in respect of the conduct. This is known as the aut dedere
aut judicare principle (the duty to prosecute or extradite).16 However, the obliga-
tion aut dedere aut judicare is not an absolute obligation. Rather, it applies only to
those states party to the relevant international conventions,17 and only where the
individual in question is located within the territory of the state concerned. Most
relevant to this discussion is consideration of whether any international crimes
are subject to such an obligation. There is no treaty-based duty to extradite or
prosecute in respect of crimes against humanity.18 The Convention on the
Prevention and Punishment of the Crime of Genocide (Genocide Convention)
does not incorporate the aut dedere aut judicare principle.19 While there is a wide-
ranging obligation to prosecute or extradite contained in the grave breaches pro-
visions of the Geneva Conventions,20 this regime applies only to international
armed conflicts and is thus limited in its scope. Therefore, it must be concluded
that there is no general duty to prosecute offenders in respect of international

Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entry into
force 21 October 1950) 75 UNTS 135 (GCIII) arts 129 and 130; Geneva Convention Relative to the
Protection of Civilian Persons in Time of War (adopted 12 August 1949, entry into force 21 October
1950) 75 UNYS 287 (GCIV) arts 146 and 147 (GCIV); Geneva Protocol I Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed
Conflicts (adopted 8 June 1977, entry into force 7 December 1978) 1125 UNTS 3 (API) arts 11, 85, 86
and 88; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (adopted 10 December 1984, entry into force 26 June 1987) 1564 UNTS 85 (Convention
Against Torture) art 6; International Convention for the Protection of All Persons From Enforced
Disappearances, GA Res 61/177, Annex, arts 9, 11; and certain terrorism conventions, eg, the
Convention for the Suppression of Unlawful Seizure of Aircraft (adopted 16 December 1970, entered
into force 14 October 1971) 860 UNTS 105, art 7 and the Convention for the Suppression of Unlawful
Acts Against the Safety of Civil Aviation (adopted 23 September 1971, entered into force 26 January
1973) 974 UNTS 177, art 7.
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

16
For further discussion of this principle, see M Bassiouni and E Wise, Aut Dedere Aut Judicare: The
Duty to Prosecute in International Law (Leiden, Martinus Nijhoff Publishers, 1995). See also the cur-
rent work of the International Law Commission on the topic: International Law Commission,
‘Preliminary Report of the Special Rapporteur on the Obligation to Extradite or Prosecute (aut Dedere
aut Judicare)’ (7 June 2006) UN Doc A/CN.4/571; International Law Commission, ‘Second Report of
the Special Rapporteur on the Obligation to Extradite or Prosecute (aut Dedere aut Judicare)’ (11 June
2007) UN Doc A/CN.4/585; and International Law Commission, ‘Third Report of the Special
Rapporteur on the Obligation to Extradite or Prosecute (aut Dedere aut Judicare)’ (10 June 1008) UN
Doc A/CN.4/603.
17
Broomhall considers that ‘this form of jurisdiction is not truly “universal”, but is a regime of juris-
dictional rights and obligations arising amongst a closed set of states parties’: B Broomhall, ‘Towards
the Development of an Effective System of Universal Jurisdiction for Crimes Under International Law’
(2001) 35 New England Law Review 399, 401. See also I Brownlie, Principles of Public International Law,
7th edn (Oxford, Oxford University Press, 2008) 304; R Higgins, Problems and Processes: International
Law and How We Use It (Oxford, Clarendon Press,1994) 62–65; Lowe and Staker, n 1, 327–29.
18
There is no treaty that regulates comprehensively crimes against humanity as such, although pro-
visions in instruments such as the Convention Against Torture may be relevant.
19
The Genocide Convention limits prosecution to the courts of the territorial state or an inter
national criminal court, which had not been established. See Convention on the Prevention and
Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951)
78 UNTS 277, art VI.
20
See GCI, art 49; GCII, art 50; GCIII, art 129; GCIV, art 146; see also API, art 86.

crimes, at least as a matter of conventional law. This reflects the piecemeal nature
of the various instruments, with individual treaties concentrated on particular
substantive crimes, rather than on establishing comprehensive obligations. Even
where such a duty can be established, for example in relation to grave breaches of
the Geneva Conventions, the state always retains the option of extraditing the
accused to another state willing to exercise jurisdiction. As Akhavan notes, the
requirement to extradite or prosecute ‘requires a genuine effort to pursue justice
but not a strict obligation to prosecute, recognizing a necessary element of prose-
cutorial discretion’.21 The provisions establishing the aut dedere aut judicare prin-
ciple do not establish any hierarchy for states faced with competing jurisdictional
claims; even the territorial state may elect to extradite to a third state with a weaker
jurisdictional link to the crimes.22
An obligation to prosecute international crimes may arise as a matter of
customary international law, binding on all states including those not party to the
relevant treaties. The absence of an obligation is supported by practice, for although
there is some evidence of support for a customary obligation to prosecute,23 this has
not been reflected in a significant number of prosecutions for such crimes at the
national level.24 Similarly, arguments that a duty to prosecute exists by reason of the
jus cogens or erga omnes nature of the crimes have also been rejected.25 Even though
the prohibition against committing the crime may be of a jus cogens nature, this
does not necessarily extend to a duty to prosecute those accused of violating the
prohibition. To the contrary, practice suggests that the ‘higher’ status of the core
crimes creates only a right, but not an obligation, to prosecute those accused of
committing core crimes. Thus, there is certainly considerable debate as to whether
the aut dedere aut judicare principle is a principle of customary international law,
separate from any treaty-based obligation, let alone whether it enjoys jus cogens sta-
tus distinct from the prohibition against committing the core crimes.26
Although the Rome Statute of the International Criminal Court (Rome Statute)
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

recognises the primary responsibility of states to exercise national jurisdiction in

21
P Akhavan, ‘Whither National Courts? The Rome Statute’s Missing Half: Towards and Express
and Enforceable Obligation for the National Repression of International Crimes’ (2010) 8 Journal of
International Criminal Justice 1245, 1252.
22
See Suleymane Guengueng et al v Senegal (Decision of the Committee Against Torture)
Communication No 181/2001 (19 May 2006).
23
See, eg, the 1996 International Law Commission Draft Code of Crimes Against the Peace and
Security of Mankind which includes an obligation to extradite or prosecute individuals accused of
committing genocide, crimes against humanity and war crimes: International Law Commission, ‘Draft
Code of Crimes Against the Peace and Security of Mankind (1996)’ vol II(2) Yearbook of the
International Law Commission 17, arts 8–9. The preamble to the Rome Statute ‘recall[s] the duty of
every State to exercise its criminal jurisdiction over those responsible for international crimes’ although
it does not establish the source of this duty.
24
For arguments that a duty may be emerging based on territorial and nationality based jurisdic-
tion, see D Robinson, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the
International Criminal Court’ (2003) 14 European Journal of International Law 481.
25
For advocates of this view, see M Bassiouni, ‘International Crimes: Jus Cogens and Obligatio Erga
Omnes’ (1996) 59 Law and Contemporary Problems 63. Cryer, eg, rejects this argument: Cryer,
Prosecuting International Crimes: Selectivity and the International Criminal Law Regime, n 6, 110–17.
26
See sources at n 16 above.

respect of core crimes,27 the Statute itself does not recognise or impose an obligation
for states to do so, even those states that are party to the Rome Statute. While states
are encouraged to criminalise the crimes within the jurisdiction of the ICC as a mat-
ter of national law (ie exercise prescriptive jurisdiction), it remains a matter of dis-
cretion for states as to whether they will exercise enforcement or adjudicative
jurisdiction in respect of the commission of a particular crime.28 Of course, states
that do not exercise this jurisdiction risk the ICC exercising its jurisdiction (the
principle of complementarity),29 but that possibility may not be a sufficient incen-
tive to force the state to act at the national level.
Various commentators have argued that international human rights law, in par-
ticular the provisions of multilateral conventions for the protection of human
rights, may impose a duty to prosecute alleged human rights violations,30 which by
their nature may also constitute international crimes.31 This assertion is based on
the obligation to provide an effective remedy, which is included in most major
human rights instruments.32 It has also been argued that this obligation exists as a
matter of customary international law, relying on instruments such as the General
Assembly’s resolution on reparations and the duty to provide an effective remedy.33
However, it is doubtful that the obligation to provide a remedy extends to requiring
the state to conduct criminal prosecutions in all cases. Other remedies, such as the
payment of compensation, the conduct of an investigation or establishing alterna-
tive justice mechanisms could also satisfy this obligation, even in the absence of any
criminal proceedings. There is thus an element of discretion for the state as to how
the obligation is to be fulfilled. Moreover, human rights instruments are generally
restricted to regulating violations committed within the territory of the state con-
cerned, and – at least in the absence of the victim coming within the ‘jurisdiction’ of
the state for human rights purposes – do not support a wider obligation to prose-
cute violations occurring outside the territory of the State.34
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

27
See also this ch 1, section III(C)(iii).
28
Akhavan, ‘Whither National Courts? The Rome Statute’s Missing Half: Towards and Express
and Enforceable Obligation for the National Repression of International Crimes’, n 21, 1265. See also
J Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International
Criminal Law’ (2003) 1 Journal of International Criminal Justice 86.
29
See this ch 1, section III(C)(iii).
30
D Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior
Regime’ (1991) 100 Yale Law Journal 2537.
31
eg, torture is considered a violation of human rights law, but may also constitute a war crime or a
crime against humanity, depending on the circumstances in which it is carried out.
32
See, eg, International Covenant on Civil and Political Rights (adopted 16 December 1966, entered
into force 23 March 1976) 999 UNTS 171 (ICCPR) art 2(3).
33
UNGA Res 60/147 ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law’ (21 March 2006) UN Doc A/Res/60/147.
34
Extraterritorial obligations may be incurred where the victims or the offenders have been brought
within the jurisdiction of the state for human rights purposes. eg, the European Court of Human
Rights has most recently confirmed that the jurisdiction of the United Kingdom was engaged when
‘through its soldiers engaged in security operations in Basrah during the period in question, exercised
authority and individuals killed in the course of such security operations’ in Iraq: Case of Al-Skeini and
Others v The United Kingdom (Judgment) Application No 55721/07, European Court of Human
Rights, Grand Chamber (7 July 2011) para 149. See also Banković and Others v Belgium and 16 Other

In any event, even if it was possible to establish a duty to prosecute, either as a

matter of international criminal law or based on human rights principles, there is
no mechanism for enforcing compliance with this obligation. Thus, in the absence
of a comprehensive duty on states to exercise national jurisdiction there is no duty
to prosecute. This may result in one or more states permitted under international
law to exercise jurisdiction, yet no action being taken by any state. In fact, until the
last two decades, instances of states exercising jurisdiction to try crimes considered
to be international crimes were rare, and those that did occur largely concerned war
criminals from the Second World War. Other situations where trials have occurred
include trials for genocide in Equatorial Guinea,35 the convictions in absentia of
Khmer Rouge leaders in Cambodia,36 and several trials before national courts in
relation to violations of the Geneva Conventions.37 The frequency of national trials
for conduct that could constitute international crimes has increased in recent years,
although the majority of states have tried the conduct as ordinary crimes,
rather than international crimes. National trials concerning international crimes
have occurred in states including Argentina, Chile, Ethiopia, Germany, Guatemala,
Hungary and Indonesia and are ongoing in several states of the former Yugoslavia,
including Serbia, Croatia, Bosnia and Herzegovina, and also in Rwanda.38
There have also been courts martial in the United Kingdom and the United
States in respect of abuse of detainees in Iraq.39 Most recently, Bangladesh has
established a tribunal to try those accused of committing international crimes
during the war of independence from Pakistan.40 However, these cases in no way
reflect the actual number of instances where prosecutions for such conduct could

Contracting States (Admissibility Decision) Application No 52207/99, European Court of Human

Rights, Grand Chamber, ECHR 2001 XII (12 December 2001).
35
In September 1979 Francisco Macias Nguema (the former President of Equatorial Guinea) was
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

tried and convicted by a Special Military Court on charges including genocide, multiple murders and
embezzlement. He was subsequently executed. 10 political associates were also tried and convicted. For
further discussion, see J Quigley, The Genocide Convention: An International Legal Analysis (Aldershot,
Ashgate, 2006).
36
In 1979 the government installed in Cambodia by Vietnam ordered the trial by a revolutionary
people’s court of Pol Pot and Ieng Sary, the deputy prime minister and minister of foreign affairs. Both
men were convicted and sentenced to death in absentia.
37
Numerous trials before national courts resulted from the Second World War, in particular before
German courts. However, other states have also initiated proceedings for war crimes during that con-
flict, including France, Italy, Austria, the Netherlands and the UK. For further discussion, see Cryer et
al, n 14, 65–66.
38
J Rikhof, ‘Fewer Places to Hide? The Impact of Domestic War Crimes Prosecutions on International
Impunity’ (2009) 20 Criminal Law Forum 1. For Croatia, see I Josipovic, ‘Responsibility for War Crimes
before National Courts in Croatia’ (2006) 861 International Review of the Red Cross 145.
39
See Proceedings of a General Court Martial held at Military Court Centre Bulford in the Case of
Corporal Donald Payne and Others, 7 September 2006–30 April 2007 (UK), discussed in N Rasiah,
‘The Court-Martial of Corporal Payne and Others and the Future Landscape of International Criminal
Justice’ (2009) 7 Journal of International Criminal Justice 177; R Arnold, ‘The Abu Ghraib Misdeeds:
Will There Be Justice in the Name of the Geneva Conventions?’ (2004) 2 Journal of International
Criminal Justice 999.
40
See S Linton, ‘Completing the Circle: Accountability for the Crimes of the 1971 Bangladesh War
of Liberation’ (2010) 21 Criminal Law Forum 191.

and should have been pursued. Many states have proved reluctant to try their
own nationals.41

C. Challenges of Domestic Prosecution

The absence of state practice showing trials for international crimes at the domes-
tic level reinforces the conclusion that there is not an obligation to prosecute such
conduct. There is, at present, simply insufficient state practice to support such an
obligation. But why is there a continued reluctance to prosecute international
crimes at the domestic level? In part, the reluctance may be due to the political,
legal and resource challenges of trying international crimes domestically. The
exercise of national jurisdiction in respect of international crimes presents many
challenges. The traditional model presumes a stable state and justice system;
essentially a state of normalcy in the territorial state. Yet in many conflict and
post-conflict societies this is often not the case. The most extreme situation is
where the judicial system has collapsed because of the conflict, leading to a lack of
the physical, financial and human resources necessary to operate the judicial
ystem. There is no infrastructure to conduct any trials, let alone complex and
sensitive trials. A related concern is that where a conflict has recently ended, or is
ongoing, the security situation may not permit the holding of trials, especially
those connected to the conflict. Even if the judicial system is operational it may
not be able to cope with trials of all offenders where the conflict has produced a
significant number of accused. Moreover, some otherwise-functioning systems
raise specific concerns. The domestic system may not be capable of operating
either impartially or independently of the government or other key national
power groups, or may be tainted by association with a prior regime. Government
officials may be implicated in the alleged actions and may wish to interfere with or
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

avoid investigation and prosecutions altogether. Alternatively there may be a per-

ceived need to remove judges and officials associated with the previous regime,
leading to a loss of vital skills and experience. Members of minority groups alien-
ated by the conflict may be unable or unwilling to participate, and the procedural
standards may not meet the minimum standards required by international human
rights law. Furthermore, there may be a lack of political will. All these factors may
lead the local population, or the international community, to struggle to accept
the criminal justice system as legitimate, unbiased and fair.
More subtle obstacles to trials before national courts may exist in the domestic
procedural or substantive law. For example, the applicable procedural law may
not accord with internationally accepted fair trial standards and the resulting con-
victions or acquittals would therefore be considered suspect. In terms of substan-
tive law, there may be amnesty provisions, domestic immunities, statutes of
41
See T McCormack, ‘Their Atrocities and Our Misdemeanours: The Reticence of States to Try
Their “Own Nationals” for International Crimes’ in M Lattimer and P Sands (eds), Justice for Crimes
Against Humanity (Oxford, Hart Publishing, 2003) 107.

limitation, or simply an underdeveloped substantive law that does not criminalise

the activity in question, or else considers the action to constitute a ‘lesser’ crime.
The general rule against retroactive laws can also prove an obstacle in instances
where the laws in place at the time of the commission of the relevant acts failed to
comprehensively criminalise the conduct.42 Even where a suitable law exists, the
judiciary, prosecution and defence may have little or no experience of trials for
serious or systematic crimes conducted during the conflict, and limited exposure
to principles of substantive and procedural international criminal law. Despite
the nature and complexity of the crimes committed, local lawyers may treat the
conduct as ordinary domestic crimes or may be uncertain about how to prove or
defend such serious charges. While the process of implementation into domestic
law of obligations of states becoming party to the Rome Statute may improve this
situation, as states incorporate the crimes within the Rome Statute and consider
their application before national courts,43 such issues have led to impunity in the
past and may continue to do so in future.

D. Prosecution before National Courts of Third States on the Basis

of Universal Jurisdiction
As several states may assert jurisdiction for a given crime, trials before the courts
of a third state may also be an option to end impunity for international crimes.
Under this model, proceedings in third states effectively replace trials in the courts
of the state most affected. By criminalising conduct that has occurred outside its
territory, a state may be exercising jurisdiction based on principles of nationality
of the victim or offender, or the protective principle. However, it is the exercise of
universal jurisdiction, which does not require such a connection, which has
attracted the most critical attention. The widest view of universal jurisdiction is
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

that it enables a state to criminalise conduct based solely on the nature of the
crime, without regard to where the crime was committed, the nationality of
the alleged perpetrator, the nationality of the victim, or any other connection to
the state exercising such jurisdiction.44 If such jurisdiction is accepted, a state with
no real connection to the crime, save the general community interest in securing
accountability, could claim jurisdiction and enforce violations. The exercise of
such universal jurisdiction by the domestic courts of third states is a horizontal

See ICCPR, art 15.

For discussion of such problems in the context of implementation of obligations under the Rome
43

Statute in Africa, see O Bekou and S Shah, ‘Realising the Potential of the International Criminal Court:
The African Experience’ (2006) 6 Human Rights Law Review 499.
44
Princeton Project on Universal Jurisdiction, The Princeton Principles on Universal Jurisdiction
(Princeton, Princeton University, 2001); Institute of International Law ‘Universal Criminal Jurisdiction
with Regard to the Crime of Genocide, Crimes Against Humanity and War Crimes – Preparatory
Work: Report – Replies and Observations of the Members of the Commission’ (2005) 71–I, Seventeenth
Commission, Session of Krakow Yearbook of the Institute of International Law; C Kress, ‘Universal
Jurisdiction Over International Crimes and the Institut de Droit International’ (2006) 4 Journal of
International Criminal Justice 561; and O’Keefe, n 3.

approach to international criminal justice, with the courts of one state reviewing
the acts of an individual in another state. For this reason, the exercise of universal
jurisdiction potentially represents a significant interference with the sovereignty
of those states having a stronger jurisdictional connection to the crimes, including
the territorial state and the state of which the accused is a national. Given the tra-
ditional importance placed by states on their right to exercise jurisdiction within
their own territory, the exercise of universal jurisdiction is a serious challenge to
the sovereignty of the territorial state. It is for this reason that the use of universal
jurisdiction is particularly controversial.
Broomhall identifies both pragmatic and normative rationales for the existence
of universal jurisdiction in international law and its impact on the sovereignty of
states. The pragmatic rationale is that other bases of jurisdiction are insufficient to
ensure accountability, ‘as these acts are often committed by those who act from or
flee to a foreign jurisdiction, or by those who act under the protection of the
State’.45 He argues that this consideration is apparent in particular regarding
piracy on the high seas,46 slavery and terrorism. The normative rationale is that
such crimes are of universal concern, ‘deserving condemnation in themselves,
and deemed to affect the moral and even peace and security interests of the entire
international community’.47 Thus universal jurisdiction reflects the interference
with sovereignty required to advance the community interest in preventing com-
mission and punishing violations of international crimes.
Universal jurisdiction is said to arise under both treaty and customary
international law.48 The widest view of universal jurisdiction arises only under
customary international law. The category of offences in relation to which univer-
sal jurisdiction arises in customary international law is limited. It may include
offences such as piracy,49 genocide,50 crimes against humanity,51 grave breaches
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

45
B Broomhall, International Justice & The International Criminal Court: Between Sovereignty and
the Rule of Law (Oxford, Oxford University Press, 2003) 107–08.
46
Note, however, the concerns of several commentators that the piracy analogy is inappropriate for
international crimes such as war crimes, genocide and crimes against humanity. For detailed discus-
sion, see E Kontorovish, ‘The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation’
(2004) 45 Harvard International Law Journal 183.
47
Broomhall, International Justice & The International Criminal Court: Between Sovereignty and the
Rule of Law, n 45, 107.
48
For a detailed discussion of universal jurisdiction, see M Bassiouni, ‘Universal Jurisdiction for
International Crimes: Historical Perspectives and Contemporary Practice’ (2002) 42 Virginia Journal
of International Law 81; and K Randall, ‘Universal Jurisdiction Under International Law’ (1988) 66
Texas Law Review 785.
49
Commentators and the majority of judges in the Arrest Warrant case agree that universal jurisdic-
tion is recognised in relation to piracy, see A Cassese, ‘When May Senior State Officials Be Tried for
International Crimes? Some Comments on the Congo v. Belgium Case’ (2002) 13 European Journal of
International Law 853, 857.
50
The Genocide Convention does not recognise universal jurisdiction in respect of acts of geno-
cide. However, genocide has subsequently been considered as giving rise to universal jurisdiction
under customary international law: M Morris, ‘Universal Jurisdiction in a Divided World’ (2001) 35
New England Law Review 337, 347.
51
Attorney General of the Government of Israel v Eichmann n 12.

of the Geneva Conventions,52 slavery,53 and torture,54 although it may also include
other offences such as serious violations of international humanitarian law (for
example, acts short of torture such as cruel, inhuman and degrading treatment.55
Several states have introduced domestic legislation that criminalises crimes com-
mitted abroad, based either on jurisdiction deriving from treaty provisions or
under customary international law.56 However, instances of domestic courts
relying upon such provisions were rare until relatively recently. Since the 1990s
the courts of an increasing number of mainly European states have commenced
proceedings concerning acts committed outside the prosecuting state.57
States where complaints have been filed, investigations commenced and/or
trials conducted58 include Australia,59 Belgium,60 France,61 Germany,62 the
52
Prosecutor v Tadić (Jurisdiction) ICTY-94-1-AR72 (2 October 1995) (the Tadić Jurisdiction
Decision) para 80. See also R Van Elst, ‘Implementing Universal Jurisdiction Over Grave Breaches of
the Geneva Conventions’ (2000) 13 Leiden Journal of International Law 815.
53
None of the treaties aimed at the suppression of the slave trade explicitly provide for the exercise of
universal jurisdiction. However, the majority view appears to support the possibility of the exercise of
universal jurisdiction for slavery under customary international law: see, Randall, ‘Universal Jurisdiction
Under International Law’, n 48, 798. For the contrary view see Bassiouni, ‘Universal Jurisdiction for
International Crimes: Historical Perspectives and Contemporary Practice’, n 48, 114–15.
54
The argument that customary international law permits the exercise of universal jurisdiction in
respect of torture can be made more forcefully since the decision of the ICTY in Prosecutor v Furundžija
(Judgment) ICTY-95-17/1-T, T Ch (10 December 1998) 156. See also R v Bow Street Magistrate, ex
parte Pinochet Ugarte [No 3] [1999] 2 All ER 97.
55
T Meron, ‘International Criminalization of Internal Atrocities’ (1995) 89 American Journal of
International Law 569, 568–76; T Meron, ‘Is International Law Moving Towards Criminalization’
(1998) 9 European Journal of International Law 18, 23 and 29. See also S Boelaert-Suominen, ‘Grave
Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary Law Moving Towards a
Uniform Enforcement Mechanism for All Armed Conflicts?’ (2000) 5 Journal of Conflict and Security
Law 63; T Graditzky, ‘Individual Criminal Responsibility for Violations of International Humanitarian
Law Committed in Non-International Armed Conflicts’ (1998) 322 International Review of the Red
Cross 29; Y Dinstein, ‘The Universality Principle and War Crimes’ in MN Schmitt and L Green (eds),
The Law of Armed Conflict: Into the Next Millennium (Newport RI, Naval War College, 1998); and
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

M Kamminga, ‘Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human
Rights Offences’ (2001) 23 Human Rights Quarterly 940, 947–48.
56
For an overview of municipal legal provisions and cases concerning universal jurisdiction, see
L Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford, Oxford
University Press, 2003).
57
For the role of European states in advancing the concept of universal jurisdiction, see Human
Rights Watch, Universal Jurisdiction in Europe: The State of the Art (June 2006).
58
Note that not all of these proceedings are based on universal jurisdiction – some may also rely
upon the principle of passive personality.
59
See Polyukhovich v Commonwealth (1991) 172 CLR 501 (trials in respect of crimes against
humanity and war crimes committed against Jews in Ukraine).
60
Successful convictions include the Butare Four case and the case against Rwandan businessmen
Etienne Nzabonimana and Samuel Ndashykirwa, both of which related to the commission of crimes
during the Rwandan genocide in 1994. A case is still outstanding in respect of former Chadian dictator,
Hissène Habré. Other cases were withdrawn following changes to the relevant law in 2003. For discus-
sion, see: L Reydams, ‘Universal Criminal Justice: The Belgian State of Affairs’ (2000) 11 Criminal Law
Forum 183; L Reydams, ‘Belgium’s First Application of Universal Jurisdiction: The Butare Four’ (2003)
1 Journal of International Criminal Justice 428.
61
On 1 July 2005, Ely Ould Dah was sentenced in absentia for torturing black African members of
the military in Mauritania in 1990 and 1991. Other cases remain ongoing.
62
German authorities investigated and prosecuted several offences committed in the former
Yugoslavia. However, since the relevant legislation was modified in 2002, no complaints have been

Netherlands,63 Spain64 and the United Kingdom.65

The house arrest of General Pinochet by the United Kingdom during a private
visit to London in 1998 following a request for extradition from Spain and the
subsequent legal proceedings66 was at the time considered to herald a new era for
the prosecution of international crimes.67 Reliance on universal jurisdiction
would, it was believed, overcome the twin difficulties of relying upon the territo-
rial state to exercise its jurisdiction and the absence of a functioning international
criminal court. This initial optimism may have been misguided, as universal juris-
diction has not proved to be the ‘cure-all’ it was hoped to be. The relatively few
instances where a state has exercised universal jurisdiction have highlighted the
challenges involved. First, there remains a division between states and commenta-
tors as to the scope of universal jurisdiction and the crimes to which it applies,
absent a specific treaty provision.68 For example, is any link to the prosecuting

investigated. This includes cases filed against former US Secretary of State for Defence, Donald
Rumsfeld, former Chinese President, Jiang Zemin, and former Uzbek Minister of the Interior, Zokirjon
Almatov.
63
In 2004 a Congolese national was convicted of leading death squads in Kinshasa between 1990
and 1995. In 2005 two Afghans were convicted for their involvement in torture and war crimes.
64
Spain has relied on universal jurisdiction in relation to international crimes. Cases initiated in
Spain include the following: former Chilean dictator, Augusto Pinochet; former Peruvian President,
Alberto Fujimori; Argentine military officer Adolfo Scilingo (see A Gil Gil, ‘The Flaws of the Scilingo
judgment’ (2005) 3 Journal of International Criminal Justice 1082; G Pinzauti, ‘An Instance of
Reasonable Universality: The Scilingo Case’ (2005) 3 Journal of International Criminal Justice 1092; C
Tomuschat, ‘Issues of Universal Jurisdiction in the Scilingo Case’ (2005) 3 Journal of International
Criminal Justice 1074; Decision on the Extradition of Ricardo Miguel Cavallo, Supreme Court of Justicia
(10 June 2003) 42 ILM 888; Tribunal Supremo, Sala de lo Penal, Sentencia n°327/2003, Recurso de
casación n°803/2001 (25 February 2003) (Guatemalan Generals Case); and cases concerning events in
Tibet (see C Baker, ‘Universal Jurisdiction of Spanish Courts over Genocide in Tibet: Can it Work?’
(2006) 4 Journal of International Criminal Justice 595).
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65
The first successful trial under universal jurisdiction legislation occurred in 2005, with the con-
viction of Faryadi Zardad, an Afghan militia leader, of acts of torture and hostage-taking in Afghanistan
in the 1990s. However, the legislation criminalising the conduct was based on the United Kingdom’s
treaty-based obligations so it was not an exercise of universal jurisdiction in the sense used here.
66
For discussion of the proceedings in the United Kingdom, Spain and other European courts, see
N Roht-Arriaza, ‘The Pinochet Precedent and Universal Jurisdiction’ (2001) 35 New England Law
Review 311.
67
eg, C Chinkin, ‘R v Bow Street Stipendiary Magistrate, ex parte Pinochet (No 3) [1992] 2 WLR
827’ (1999) 93 American Journal of International Law 703, 711.
68
The varying views on the scope of universal jurisdiction were apparent in the opinions expressed
by the ICJ in the Arrest Warrant case. For discussion of the different viewpoints, see: N Boister, ‘The ICJ
in the Belgian Arrest Warrant Case: Arresting the Development of International Criminal Law’ (2002)
7 Journal of Conflict and Security Law 293; O’Keefe, n 3; and Cassese, n 49. The International Court of
Justice may have further opportunities to address the issue of universal jurisdiction in international
law, with proceeding pending between the Republic of the Congo and France with respect to proceed-
ings for crimes against humanity and torture commenced against the Congolese Minister of the
Interior, Mr Pierre Oba, in connection with which a warrant was issued for the witness hearing of the
President of the Republic of the Congo, Mr Denis Sassou Nguesso: Certain Criminal Proceedings in
France (Republic of Congo v France) [2003] ICJ Rep 102. Proceedings are also pending relating to a
dispute between Belgium and Senegal concerning Senegal’s obligation to extradite or prosecute
Hissène Habré: Proceedings instituted by the Kingdom of Belgium against the Republic of Senegal
(Belgium v Senegal) [2009] ICJ Rep 1.

state – such as custody of the accused – required? Is the exercise of universal juris-
diction permissive or mandatory?69
Second, trials based on universal jurisdiction have tended to become heavily
politicised, with governments concerned that the investigation of foreign state
officials may affect diplomatic relations with the state concerned, and be inconve-
nient or embarrassing to the state where the trial is to be conducted.70 For example,
in December 2009, a magistrate in the United Kingdom issued a warrant for the
arrest of Ms Tzipi Livni, a former Israeli Foreign Minister and, at the time, the
leader of the opposition. Ms Livni was accused of war crimes allegedly committed
during the Israeli operations in Operation Cast Lead from December 2008 to
January 2009.71 The warrant was issued at the request of a private party for which
the consent of the Attorney-General was not required.72 It led to Ms Livni cancel-
ling her planned visit to London, diplomatic protests by Israel73 and the United
Kingdom government expressing its concern that the possible exercise of univer-
sal jurisdiction at the instigation of a private party threatened the international
relations of the United Kingdom.74 These types of concerns regarding the exercise
of universal jurisdiction have already led some states to revise their universal

69
For the view that universal jurisdiction is permissive only, see: M Scharf, ‘The Letter of the Law:
The Scope of the International Legal Obligation to Prosecute Human Rights Crimes’ (1996) 59 Law
and Contemporary Problems 41, 52–59; Meron, ‘International Criminalization of Internal Atrocities’,
n 55; and Broomhall, International Justice & The International Criminal Court: Between Sovereignty
and the Rule of Law, n 45, 404–06. For the argument that the exercise of universal jurisdiction should
be mandatory in certain circumstances, see M Bassiouni, Crimes Against Humanity in International
Law, 2nd edn (The Hague, Kluwer Law International, 1999) 220 (on crimes against humanity) and
M Bassiouni, ‘Accountability for International Crime and Serious Violations of Fundamental Human
Rights: International crimes: Jus Cogens and Obligatio Erga Omnes’ (1996) 59 Law and Contemporary
Problems 63.
70
Morris notes that, as war crimes, genocide and crimes against humanity will often involve official
acts, trials of such acts pursuant to universal jurisdiction ‘often will constitute, in effect, the judgment
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

of one state’s policies and perhaps, officials, in the courts of another state. In such instances . . . univer-
sal jurisdiction will become a source and an instrument of interstate conflict’: Morris, n 50, 354.
Moreover, prosecutions may be politically motivated.
71
The policy of Westminster Magistrates’ Court is neither to confirm nor to deny the existence of an
arrest warrant. See I Black and I Cobain, ‘British Court Issued Gaza Arrest Warrant for Former Israeli
Minister, Tzipi Livni’ The Guardian (London, 14 December 2009) www.guardian.co.uk/world/2009/
dec/14/tzipi-livni-israel-gaza-arrest.
72
The Geneva Conventions Act 1957 permits the exercise of universal jurisdiction in respect of
grave breaches of the Geneva Conventions. The consent of the Attorney-General is required before
proceedings based on universal jurisdiction are initiated. However, s 25(2) of the Prosecution of
Offences Act 1985 allows an arrest warrant to be issued before proceedings have been instituted, thus
avoiding the need for the Attorney-General’s consent. This provision has been used by a number of
private parties to secure arrest warrants against foreign nationals intending to visit London.
73
Statement, Ministry of Foreign Affairs of Israel (15 December 2009). The British Ambassador to
Israel was summoned and informed of Israel’s protests and the impact of the arrest warrant on
Israel-UK diplomatic relations: see A Blomfield, ‘Tzipi Livni Arrest Warrant Provokes Britain-Israel
Diplomatic Row’ The Telegraph (London, 15 December 2009) www.telegraph.co.uk/news/worldnews/
middleeast/israel/6819275/Tzipi-Livni-arrest-warrant-provokes-Britain-Israel-diplomatic-row.html.
74
Statement by then Foreign Secretary David Miliband, 15 December 2009. See also G Brown, ‘Britain
must protect foreign leaders from private arrest warrants’ The Telegraph (London, 3 March 2010) www.
telegraph.co.uk/news/politics/gordon-brown/7361967/Britain-must-protect-foreign-leaders-from-
arrest.html.

jurisdiction laws.75 The United Kingdom has subsequently changed the relevant
legislative provisions to restrict the ability of a private party to seek an arrest war-
rant based on universal jurisdiction.76
Third, universal jurisdiction is more likely to be exercised by a developed,
Western state, which raises allegations of neo-colonialism.77 The African Union has
asserted that the principle is subject to abuse mainly by European states,78 and has
engaged in dialogue with the European Union to further define the principle and
agree on appropriate restraints in its exercise.79 Experts engaged by the two organ-
isations noted that while several African states may exercise universal jurisdiction
under their national laws, based either on treaty provisions or on customary inter-
national law, no African state is known to have exercised such jurisdiction.80 The
concerns raised by the African Union also resulted in the question of the possible
abuse of the principle of universal jurisdiction being referred to the Sixth Committee
– the legal committee – of the General Assembly for discussion.81
Fourth, there are concerns regarding the resources required to conduct trials
on the basis of universal jurisdiction. Even before the courts of the territorial
states, trials for those accused of international crimes often raise complex legal
and evidentiary issues. When the trial is before the courts of a third state, it is
likely that preliminary challenges to jurisdiction will be raised, further complicat-
ing proceedings. Trials that are conducted away from the scene of the alleged
crimes require evidence to be obtained from victims and witnesses located in
other states, which may be very difficult absent the consent and cooperation of
the territorial state. For example, the only trial to have occurred in the United
75
In 2003 Belgium amended its laws permitting the exercise of universal jurisdiction as a result of
direct pressure from the United States following the filing of complaints in Belgium against US military
and political leaders. The United States threatened to have the NATO headquarters moved from Brussels.
See: L Reydams, ‘Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of
International Humanitarian Law’ (2003) 1 Journal of International Criminal Justice 679; Cassese, ‘When
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium
Case’, n 49; S Ratner, ‘Belgium’s War Crimes Statute: A Postmortem’ (2003) 97 American Journal of
International Law 888. Spain has also recently amended its law to require a clear link to Spain. See also
Jurist, ‘Spain parliament passes law limiting reach of universal jurisdiction statute’ (16 October 2009).
76
The Police Reform and Social Responsibility Act 2011 introduced a requirement that a private
party must obtain the consent of the Director of Public Prosecutions before an arrest warrant can be
issued on the basis of universal jurisdiction.
77
Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime,
n 6, 95–97.
78
See, eg, ‘Decision on the Report Of The Commission on The Abuse of the Principle of Universal
Jurisdiction’ Assembly of the African Union, Eleventh Ordinary Session (Sharm 30 June–1 July 2008)
UN Doc A/AU/14(XI).
79
Two meetings of the AU-EU Ministerial Troika in late 2008 addressed the issue of universal juris-
diction, and its possible impact on relations between the EU and the AU.
80
Technical Ad Hoc Expert Group on the Principle of Universal Jurisdiction ‘AU-EU Expert Report
on the Principle of Universal Jurisdiction’ (16 April 2009) available at www.africa-union.org/root/ar/
index/Report%20UJ%20_FINAL_English.pdf.
81
The Sixth Committee asked the Secretary-General to request states to submit information and
observations concerning the principle of universal jurisdiction and to produce a report for considera-
tion by the General Assembly at its 66th session in 2011. At sessions of the Sixth Committee in both
2009 and 2010, several Member States made statements on the principle of universal jurisdiction. See
UNGA Resolution 64/117 (16 December 2009) UN Doc A/RES/64/117.

Kingdom based on universal jurisdiction, that of Afghan militia leader Faryadi

Zardad – who was convicted of acts of torture and hostage-taking that had
taken place in Afghanistan in the 1990s – required British officials to travel to
Afghanistan on several occasions and to hear evidence from 16 witnesses located
in Afghanistan.82 This required considerable diplomatic efforts on the part of the
prosecuting and governmental authorities in the United Kingdom. States that
have exercised universal jurisdiction have found it difficult to obtain custody of
the accused and to locate and produce witnesses and evidence because treaties on
extradition and mutual legal assistance generally do not specifically contemplate
universal jurisdiction for international crimes.83 This reflects the horizontal,
rather than vertical, nature of courts exercising universal jurisdiction. At the very
least, this makes such trials more complicated, lengthy and expensive than ‘ordi-
nary’ criminal trials and may raise novel and difficult questions of law for the
national court. Moreover the fear that a legal system with laws that provide for the
exercise of universal jurisdiction may become the forum of choice, leading to
great expense and inconvenience for national authorities, has led to some damp-
ening of political enthusiasm for universal jurisdiction.
Fifth, there are also concerns that the defendant’s right to a fair trial may be
adversely affected in a trial located outside the territorial state,84 or that the courts of
other states will not remain impartial.85 This is particularly worrying where the state
in question permits trials in absentia on the basis of universal jurisdiction. Sixth, the
relevant national legal provisions may be inadequate: the state asserting universal
jurisdiction may not have appropriate legislation,86 or defendants may rely on
amnesties or immunities conferred under national law.87 Finally, many states allow

Crown Prosecution Service, Press Release, ‘CPS Secures Historic Torture Conviction’ (18 July 2005).
82

For discussion, see: Broomhall, International Justice & The International Criminal Court: Between
83

Sovereignty and the Rule of Law, n 45, 412–16.

84
Morris, n 50, 352–53; H Kissinger, ‘The Pitfalls of Universal Jurisdiction’ (2001) Foreign Affairs 86;
cf K Roth, ‘The Case for Universal Jurisdiction’ (2001) Foreign Affairs 150. Fletcher argues that the
failure to preclude trials in violation of the principle of double jeopardy is a fundamental flaw:
G Fletcher, ‘Against Universal Jurisdiction’ (2003) 1 Journal of International Criminal Justice 580, 582.
For a rebuttal, see A Eser, ‘For Universal Jurisdiction: Against Fletcher’s Antagonism’ (2004) 39 Tulsa
Law Review 955 and G Abi-Saab, ‘The Proper Role of Universal Jurisdiction’ (2003) 1 Journal of
International Criminal Justice 596.
85
For the contrary argument, see Cryer, Prosecuting International Crimes: Selectivity and the
International Criminal Law Regime, n 6, 97–99.
86
eg, the United States has been hampered in its use of universal jurisdiction by gaps in its own law:
D Scheffer, ‘Opening address to the Conference on Universal Jurisdiction’ (2001) 35 New England Law
Review 233. For discussion of the gaps and how to address them, see: D Cassel, ‘Empowering United
States courts to hear crimes within the jurisdiction of the International Criminal Court’ (2001) 35 New
England Law Review 421. For further discussion, see Kamminga, n 55, 951–54.
87
Kamminga, ibid, 955–99. eg, UK courts have refused several requests for an arrest warrant based
on universal jurisdiction due to the official status of the individual concerned at the time the warrant
was requested. See: Re Mugabe (Judgment of 14 January 2004) Bow Street Magistrates’ Court (2004)
53 International and Comparative Law Quarterly 770 (Head of State Immunity); Re Shaul Mofaz
(Judgment of 12 February 2004) Bow Street Magistrates’ Court (2004) 53 International and
Comparative Law Quarterly 771 (Defence Minister); Re Bo Xilai, (Judgment of 8 November 2005) Bow
Street Magistrates’ (2005) 128 ILR 713 (Trade Minister/Special Mission); and Ehud Barak, December
2009 (unreported – on file with author) (Defence Minister).

the final decision on initiating prosecutions to be made by the relevant prosecuting

authorities, which often possess a wide degree of discretion as to whether such cases
are pursued.88 The final authority to proceed may also be subject to the consent of a
government official, who may take into account other interests, such as the impact
of the prosecution on the state’s relations with other states.89
Moreover, the state-based approach of universal jurisdiction does not recognise
any method of resolving the priority between possibly competing claims of juris
diction, as the principle does not recognise that states that have a stronger juris
dictional link to the crimes should be preferred where possible. Even those states
that are broadly supportive of the principle of universal jurisdiction have indicated
that the exercise of universal jurisdiction by states is subject to restrictions, includ-
ing rules designed to prevent conflicts of jurisdiction.90 One such principle is the
principle of subsidiarity, which provides that universal jurisdiction should not be
exercised unless the territorial state is not willing to investigate (genuinely) the
alleged offences. This principle, which has its roots in the division of competence
between the institutions of the European Union, requires states to defer the exercise
of jurisdiction to the courts of a state having a more substantial jurisdictional link to
the crimes.91 A third state should exercise its jurisdiction on the basis of universal
jurisdiction only where any state with a stronger claim has failed or refused to act
and where an international court, in particular the ICC, is not willing or able to
exercise its jurisdiction. Thus national courts of third states initiating prosecutions
on the basis of universal jurisdiction would be the final option to avoid impunity.
Only where a state with a stronger jurisdictional basis has failed to act would a third
state be able to step in and enforce the violation of the international crime.
Accordingly, it has been suggested that ‘[T]he subsidiarity principle provides a fair
balance between sovereignty interests and international justice interests’.92
The principle of subsidiarity is reflected in paragraphs 3(c) and (d) of the 2005
resolution of the Institute of International Law.93 The subsidiarity approach to
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88
See, eg, The Code for Crown Prosecutors issued by the Director of Public Prosecutions of England
and Wales.
89
eg, as noted above, in the United Kingdom, the Attorney-General, a government-appointed offi-
cial, must consent to the initiation of a prosecution for an international crime based on universal
jurisdiction. Morris argues that allowing a role for those responsible for foreign policy may enable the
state in question to avoid undesirable consequences: Morris, n 50, 356. However, it is unlikely that such
officials would accept such a role, as they are act independently in the exercise of these types of powers.
90
UNGA Sixth Committee (64th Session) United Kingdom, Statement to the Sixth Committee
concerning ‘Agenda item 84: The Scope and Application of the Principle of Universal Jurisdiction’ (24
November 2009) UN Doc A/C.6/64/SR.13.
91
Recent practice, including remarks by the UK Government, suggest that the subsidiarity principle
also applies to international courts; that is, a national court should also defer where the accused is
sought for prosecution before an international tribunal with jurisdiction.
92
J Geneuss, ‘Fostering a Better Understanding of Universal Jurisdiction: A Comment on the
AU-EU Expert Report on the Principle of Universal Jurisdiction’ (2009) 7 Journal of International
Criminal Justice 945, 958.
93
Institute of International Law (17th Commission), ‘Resolution on Universal Criminal Jurisdiction
with Regard to the Crime of Genocide, Crimes Against Humanity and War Crimes’ (Krakow 2005).
For a discussion of the resolution, see C Kress, ‘Universal Jurisdiction over International Crimes and
the Institut de Droit International’, n 44.

resolving jurisdictional issues has been adopted by some European states, includ-
ing those most active in asserting universal jurisdiction. However, only a small
number of states have endorsed the principle as a legal rule binding their national
authorities,94 with other states regarding the principle as a rule of policy or inter-
national comity.95 The report of the AU-EU Expert Group on the Principle of
Universal Jurisdiction,96 while recommending that states should accord priority
to the territorial state ‘as a matter of policy’ and for practical reasons, found that
the principle cannot yet be regarded as a rule of customary international law
restraining the exercise of universal jurisdiction by third states. Thus, despite the
obvious practical and policy benefits of the principle, there does not yet seem to
be sufficient practice or certainty as to the scope of the principle to conclude that
the principle has crystallised into a rule of customary international law.97
Moreover, the concept of subsidiarity as currently advanced does not take into
account the relationship between the principle of universal jurisdiction and the
role of international criminal courts, in particular the ICC, which may also be able
to exercise jurisdiction in respect of a situation. Kleffner has suggested that states
should only exercise universal jurisdiction when the territorial state has not done
so (subsidiarity, or as he refers to it, horizontal complementarity) and where the
ICC does not exercise its jurisdiction (complementarity).98 The role of the ICC
and other mechanisms for international criminal justice will be discussed below.
Given these challenges and concerns, the prosecution of international crimes
before the courts of third states on the basis of universal jurisdiction may not rep-
resent an effective or reliable basis for achieving justice in all cases. Given the
94
In Germany and Belgium, prosecutors and courts apply the principle as a legal concept: see
C Ryngaert, ‘Applying the Rome Statute’s Complementarity Principle: Drawing Lessons from the
Prosecution of Core Crimes by States Acting Under the Universality Principle’ (2008) 19 Criminal Law
Forum 153. See also W Kaleck, ‘From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998–
2008’ (2009) 30 Michigan Journal of International Law 927.
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

95
In Spain and France, the principle is applied on the basis of reasonableness. The Spanish
Constitutional Court has stated that international law does not oblige states to accord priority to the
state with the stronger jurisdictional claim: Guatemala Genocide Case Constitutional Tribunal (Second
Chamber) Judgment No STC 237/2005 (26 September 2005). See N Roht-Arriaza, ‘Guatemala
Genocide Case’ (2006) 100 American Journal of International Law 207; Ryngaert, ibid; see H Ascensio,
‘The Spanish decision in Guatemalan Generals: unconditional universality is back’ (2006) 4 Journal of
International Criminal Justice 586, and H Ascensio, ‘Are Spanish courts backing down on universality?
The Supreme Tribunal’s decision in Guatemalan Generals’ (2003) 1 Journal of International Criminal
Justice 690. See also A Cassese, ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of
Universal Jurisdiction’ (2003) 1 Journal of International Criminal Justice 589. The Supreme Court of
Israel has described the principle as ‘a purely practical test’: Attorney General of the Government of Israel
v Eichmann (1968) 36 ILR 302, 12. The UK has indicated that the principle is a legitimate factor to
consider when assessing whether UK courts should exercise jurisdiction in a given case: the govern-
ment referred to the need to defer to territorial state in debate on recent amendments to the
International Criminal Court Act, confirming that the UK would only act where the territorial state
had failed to do so.
96
Technical Ad Hoc Expert Group on the Principle of Universal Jurisdiction ‘AU-EU Expert Report
on the Principle of Universal Jurisdiction’ (16 April 2009) available at www.africa-union.org/root/ar/
index/Report%20UJ%20_FINAL_English.pdf.
97
For the contrary view, see C Kress, ‘Universal Jurisdiction Over International Crimes and the
Institut de Droit International’, n 44, 580.
98
Kleffner, n 28.

political factors at play, it is doubtful that universal jurisdiction will prove to be

the wide-reaching tool to end impunity that was hoped. Nor should it be, given
the advantages that can be gained by prosecution in the courts of the territorial
state. This is not to say that universal jurisdiction has no role in future. The option
of trials before courts in third states will remain, but it will most likely be sub-
jected to more stringent restraints on its future use, in particular the developing
principle of subsidiarity. Moreover, given the politicisation of trials based on uni-
versal jurisdiction, many states have called for greater reliance on more neutral,
independent international mechanisms to ensure accountability, in particular
through the establishment of international criminal courts with jurisdiction to act
when the territorial state fails to do so.99 The trend towards the use of international
mechanisms is considered in the next sections.

III. Trials of International Crimes before

International Courts

A. The Post-War Period: The Nuremberg and Tokyo Tribunals

and the Work of the International Law Commission

‘Modern’ international criminal law originates from the period following the
Second World War, with the creation of the International Military Tribunal
(IMT) to prosecute and punish the major war criminals. The IMT was established
at a conference following the conclusion of the war in Europe, pursuant to an
agreement between the four Allied powers – the United States, the Soviet Union,
the United Kingdom and France.100 The London Agreement provided for the
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establishment of an international military tribunal for the trial ‘of war criminals
whose offences have no particular geographical location’.101 The IMT held its first
session in public on 18 October 1945 and delivered its judgment on October 1946,
finding 19 defendants guilty of crimes against humanity, war crimes and crimes
against peace.102 In addition, the four occupying powers established courts in their

99
Interestingly, the establishment of the ICC (discussed below) has had a positive effect on the pos-
sibility of the exercise of universal jurisdiction by national courts, with several states incorporating
universal jurisdiction as part of the process of implementing their obligations under the Rome Statute.
See: L Arbour, ‘Will the ICC have an Impact on Universal Jurisdiction?’ (2003) 1 Journal of International
Criminal Justice 585; and Kleffner, ibid.
100
Charter of the International Military Tribunal – Annex to the Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis (London Agreement) (United States-
France-Britain-USSR) (8 August 1945) 82 UNTS 279 (Charter of the IMT), art 1.
101
Charter of the IMT, art 1.
102
Judgment of the Nuremberg International Military Tribunal 1 October 1946 (1947) 41 American
Journal of International Law 172.

own zones of operation in Germany to try individuals not falling within the cate-
gory of ‘major war criminals’.103
The Allied powers also established a separate tribunal to prosecute and punish
the ‘major war criminals’ accused of crimes committed in the campaigns in the
Asia-Pacific region, the International Military Tribunal for the Far East (Tokyo
Tribunal).104 The Tokyo Tribunal was modelled on the IMT but its judges were
drawn from a wider range of states, including the newly independent states of
India and the Philippines.105 It commenced operations on 3 May 1946, conducted
trials over a period of two and a half years, and delivered its final judgment in
November 1948 by which it convicted 25 individuals for the offence of crimes
against peace and war crimes. ‘Lesser’ criminals were tried by military courts in
the territory of the victorious states.106
Both the IMT and the Tokyo Tribunal have been criticised as imposing ‘victors’
justice’ over the defeated nations.107 The tribunals were not truly independent, in
that the judges and prosecutors were appointed by the victorious Allied powers.
Moreover, alleged offences committed by Allied troops and authorities were not
considered, most significantly the atomic bombing of Japan in 1945. Concerns
were also raised that the substantive laws of the tribunals violated international
law, in particular the principle of nullum crimen sine lege, or the prohibition
against retroactive criminal laws. However, the tribunals were significant in that
they represented the first occasion on which international institutions were estab-
lished to punish war crimes. Their constituent instruments clearly supported the
principle of individual criminal responsibility for crimes such as crimes against
humanity and crimes against peace and, along with the emerging jurisprudence,
have contributed to a body of substantive and procedural rules in international
criminal law. The tribunals also assisted in promoting the development of a uni-
versal international criminal code and the establishment of a permanent interna-
tional criminal court.
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Building upon the criminal trials undertaken by the IMT and the Tokyo
Tribunal, the United Nations also contributed to an emerging international crim-
inal law. At its first meeting in 1946, the General Assembly adopted a resolution

103
Control Council for Germany, Law No 10, Punishment of Persons Guilty of War Crimes, Crimes
Against Peace and Against Humanity, 20 December 1945.
104
Charter of the International Military Tribunal for the Far East, issued by an executive order of
General MacArthur, the Supreme Commander for the Allied Powers, on 19 January 1946. The Tokyo
Tribunal was considered necessary to give effect to the Potsdam Declaration of 26 July 1945, which
demanded that ‘stern justice shall be meted out to all war criminals’.
105
Art 2 of the Charter of the International Military Tribunal for the Far East provides for the
appointment by the Supreme Commander for the Allied Powers of a maximum of 11 judges from the
signatories to the declaration of surrender, India and the Philippines.
106
Trials were held in The Netherlands, the United Kingdom, Australia, the United States, the Soviet
Union, China, France and the Philippines.
107
For discussion of these tribunals, see: N Boister and R Cryer, The Tokyo International Military
Tribunal (Cambridge, Cambridge University Press, 2008); Cryer, Prosecuting International Crimes:
Selectivity and the International Criminal Law Regime, n 6; and G Mettraux, Perspectives on the Nuremberg
Tribunal (Oxford, Oxford University Press, 2008).

confirming the principles established by the Charter and judgment of the IMT.108
The following year the General Assembly requested that the International Law
Commission formulate the principles of international law recognised in the
Charter of the IMT and its judgment, and to prepare a draft code of offences
against the peace and security of mankind.109 The United Nations, in particular
the Sixth Committee of the General Assembly, was also influential in the drafting
and adoption of the Genocide Convention in 1948. Article VI of the Genocide
Convention contemplated the future establishment of an international penal tri-
bunal. On the same day as the text of the Genocide Convention was adopted, the
General Assembly referred the task of drafting a statute for the proposed tribunal
to the International Law Commission.110 The Commission appointed a special
rapporteur to the topic,111 who provided his first report in 1950.112 Work on a
draft statute for an international criminal court was subsequently assigned to a
special committee of the General Assembly,113 which provided a first draft in
1951.114 A further committee established in 1952 issued an amended text in
1953.115 However, efforts were suspended in 1954, pending agreement as to a defi-
nition of aggression and the resumption of work on the draft code of offences
against the peace and security of mankind.116 The onset of the Cold War stalled
the work of many United Nations bodies, including the General Assembly, and
the proposal for an international criminal court was not taken up again until
1989.117

108
UNGA Res 19 (I) (11 December 1946) UN Doc A/RES/19(I).
109
UNGA Res 177 (II) (21 November 1947) UN Doc A/RES/177(II).
110
UNGA Res 260 (III)B (9 December 1948).
111
International Law Commission, ‘Desirability and Possibility of Establishing an International
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Judicial Organ for the Trial of Persons Charged with Genocide or Other Crimes over which Jurisdiction
will be Conferred upon that Organ by International Conventions’ (31 May 1949) UN Doc A/CN.4/7.
112
International Law Commission, ‘Report on the Question of International Criminal Jurisdiction
by Ricardo J. Alfaro, Special Rapporteur’ (3 March 1950) UN Doc A/CN.4/15.
113
UNGA Res 489 (V) (12 December 1950) UN Doc A/RES/489(V).
114
UNGA, ‘Report of the Committee on International Criminal Court Jurisdiction’ UN Doc
A/2135 (1952) Supplement No 11 (A/2136).
115
UNGA Res 687 (VII) (5 December 1952) UN Doc A/RES/687(VII); Official Records of the
General Assembly, Ninth Session, Supplement No 12 UN Doc A/2645.
116
UNGA Res 898 (IX) (14 December 1954) UN Doc A/RES/898(IX). The General Assembly had
established a special committee of 19 Member States to consider the question of defining aggression:
UNGA Res 895 (IX) (4 December 1954) UN Doc A/RES/895(IX). Work on the draft code of offences
against the peace and security of mankind was suspended pending consideration by the General
Assembly of the report of the special committee on aggression: UNGA Res 897 (IX) (4 December
1954) UN Doc A/RES/897(IX). Progress on the draft code and the draft statute was suspended indefi-
nitely in 1957: UNGA Res 1186 and 1187 (XII) (11 December 1957) UN Doc A/RES/1186 and
A/RES/1187 .
117
UNGA Res 44/39 (4 December 1989) UN Doc A/RES/44/39. The request for the International
Law Commission to revisit the issue of an international criminal court arose in the context of the need
for a criminal jurisdiction to consider transnational crimes, in particular drug trafficking. Work on the
Draft Code for Offences Against the Peace and Security of Mankind recommenced in 1981: see UNGA
Res 36/106 (10 December 1981) UN Doc A/RES/36/106.

B. The Ad Hoc International Criminal Tribunals

i. Establishing the International Criminal Tribunal for the Former

Yugoslavia

Following the end of the Cold War, certain events led to a development in inter-
national criminal law. The disintegration of the Socialist Federal Republic of
Yugoslavia (SFRY) in 1991 and subsequent declarations of independence by sev-
eral of its constituent states led to the emergence of conflicts both between and
within the former constituent states. The conflict thus had aspects of both an
international and an internal armed conflict. Various attempts to resolve the con-
flicts failed and reports emerged of widespread violations of international human-
itarian law. In October 1992, the Security Council acted to establish a Commission
of Experts to examine the available evidence and to report to the Secretary-
General as to whether it considered there was evidence that grave breaches of the
Geneva Conventions and other violations of international humanitarian law had
been, or were being, committed within the territory of the former Yugoslavia.118
The Commission of Experts started its investigations in November 1992, pro-
vided an interim report to the Secretary-General in January 1993,119 and issued its
final report in 1994.120 The interim report concluded that grave breaches and
other violations of international humanitarian law had been committed, includ-
ing wilful killing, ‘ethnic cleansing’ and mass killings, rape, torture, pillage and
destruction of civilian property, destruction of cultural and religious property
and arbitrary arrests. It also raised the possibility of the establishment of an inter-
national criminal tribunal to try those accused of war crimes, noting that, in the
opinion of the Commission of Experts, it would be for the Security Council – or
another competent body of the United Nations – to establish such a tribunal.121
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Acting on this suggestion, the Security Council determined that a tribunal should
be established and requested that the Secretary-General investigate possible

UNSC Res 780 (1992) UN Doc S/RES/780, para 2.

118

UNSC, ‘Interim Report of the Commission of Experts Established Pursuant to Security Council
119

Resolution 780’ (1992) UN Doc S/25274 (Interim Report) Annex 1.

120
UNSC, ‘Final Report of the Commission of Experts Established Pursuant to Security Council
Resolution 780’ (1992) UN Doc S/1994/674. For discussion of the work of the Commission, see
M Bassiouni,‘The United Nations Commission of Experts established pursuant to Security Council
Resolution 780’ (1994) 88 American Journal of International Law 784.
121
Interim Report, n 119, para 74. This was not the first time that the possibility of an international
criminal tribunal for atrocities in the former Yugoslavia had been raised. The Co-Chairmen of the
Steering Committee of the International Conference on the Former Yugoslavia also advocated the
establishment of an international penal tribunal to try individuals accused of violations of inter
national humanitarian law within the former Yugoslavia: UNSC, ‘Report of the Secretary-General on
the Activities of the International Conference for the Former Yugoslavia’ (2 February 1993) UN Doc
S/25221, Annex 1, para 9. For a more detailed discussion of the background to establishment, see
W Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone
(Cambridge, Cambridge University Press, 2006), 13–22 and Cryer et al, n 14, 122–35.

options for the creation of an international tribunal.122 Based on the recommen-

dation of the Secretary-General that the tribunal be established by a resolution,123
the Security Council established an international criminal tribunal for the prose-
cution of persons responsible for serious violations of international humanitarian
law committed in the territory of the former Yugoslavia since 1 January 1991.124
The Security Council used its powers under Chapter VII of the Charter to estab-
lish the International Criminal Tribunal for the former Yugoslavia (ICTY), find-
ing that the situation in the former Yugoslavia constituted a threat to international
peace and security.125 The ICTY may exercise jurisdiction with respect to the
international crimes of genocide, crimes against humanity and war crimes.126
Judges are appointed to the ICTY following election by the General Assembly,
from a list of candidates nominated by Member States and approved by the
Security Council.127 The Prosecutor and Registrar, as well as all personnel, are
international appointments.128 There is no requirement for the states of the for-
mer Yugoslavia to be represented in the judges or key personnel of the ICTY.
Initial doubts from some states and commentators129 that the Security Council
did not have the authority to establish such a tribunal were largely resolved in the
Tadić case.130 The ICTY took well over a year to become operational, with judges
appointed in late 1993 and the prosecutor in July 1994. The first indictments were
issued in late 1994,131 the first trial began in May 1996132 and the first judgment
was handed down on 29 November 1996.133 As at June 2011, the ICTY had
indicted 161 individuals and convicted and sentenced 64 individuals, with 13 sus-
pects acquitted. Cases concerning 35 accused were ongoing. 13 accused had been
referred to national jurisdictions (see below) and 36 accused had their cases with-
drawn or had died.134
122
UNSC Res 808 (1993) UN Doc S/RES/808.
123
UNSC, ‘Report of the Secretary-General Pursuant to Security Council Resolution 808’ (1993)
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

UN Doc S/25704, annexing the draft statute of the tribunal. The Secretary-General had recommended
that the tribunal be established by a resolution rather than by treaty, as the treaty process would be too
lengthy and would not guarantee that the states most affected would become parties.
124
UNSC Res 827 (1993) UN Doc S/RES/827.
125
Statute of the International Criminal Tribunal of the Former Yugoslavia (as established by UN
Security Council Resolution 808/1993 and 827/1993) UN Doc S/RES/827 (ICTY Statute).
126
ICTY Statute, arts 2, 3, 4 and 5.
127
Each judge must satisfy the requirement in art 13 of the ICTY Statute, which provides that each
judge ‘shall be persons of high moral character, impartiality and integrity who possess the qualifica-
tions required in their respective countries for appointment to the highest judicial offices’.
128
ICTY Statute, arts 16 and 17; ICTR Statute, arts 15 and 16.
129
UNSC Verbatim Record (25 May 1993) UN Doc S/PV.3217. A Rubin, ‘An International Criminal
Tribunal for Former Yugoslavia’ (1994) 6 Pace International Law Review 7.
130
Tadić Jurisdiction Decision. The legal basis of the ICTY will be discussed further in ch 3.
131
The ICTY’s first indictment was issued on 7 November 1994 in respect of Dragan Nikoli ć , a com-
mander of Sušica camp in eastern Bosnia and Herzegovina, for crimes committed against non-Serbs in
1992.
132
Prosecutor v Tadić ICTY-94-1. The trial commenced on 7 May 1996.
133
Prosecutor v Erdemovic (Sentencing Judgment) ICTY-96-22-T (29 November 1996); the accused
had pleaded guilty to crimes against humanity.
134
All figures have been taken from the ICTY website and are current as at August 2011. See www.
icty.org/sid/24.

ii Establishing the International Criminal Tribunal for Rwanda

Both during and following independence in 1963, Rwanda was beset by tension
between its two main ethnic groups, the Hutus and the Tutsis, with systematic kill-
ings of Tutsis documented in 1963, 1966 and 1973. In 1993, the Arusha Accords
established a power-sharing arrangement between the Rwandan government and
the Tutsi paramilitary group, the Rwandan Patriotic Force (RPF). The arrangement
was supervised by the United Nations Assistance Mission for Rwanda (UNAMIR).
The shooting-down of the aeroplane carrying President Habyarimana on 6 April
1994 ended the period of peace that had been secured by the Arusha Accords.
Members of the Hutu elite moved to eliminate Tutsis. The killing was not restricted
to members of the Tutsi leading class or key opposition figures, but extended to the
wider Tutsi population, including women and children. The RPF mounted a coun-
ter-offensive. By the time the killings ended in July 1994, between 500,000 and
1,000,000 Tutsis had been massacred, and between 10,000 and 100,000 Hutus had
been killed in the RPF counter-offensive. The killings had been conducted at great
speed, within a three month period. In addition to those killed, millions were inter-
nally displaced or became refugees in neighbouring countries. Systematic rape, tor-
ture and severe assaults were also reported.
In July 1994, the Security Council requested the Secretary-General to establish
a Commission of Experts to examine the evidence and report its conclusions con-
cerning grave violations of international humanitarian law and the possibility that
acts of genocide had occurred in Rwanda.135 The preliminary report of the
Commission of Experts concluded that there was overwhelming evidence that
genocide and other widespread, systematic and flagrant violations of international
humanitarian law had been committed in Rwanda.136 It also recommended that
the Security Council take action so that those responsible could be brought to
justice before an independent and impartial international criminal tribunal,
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preferably by amending the statute of the ICTY so as to include jurisdiction for

crimes committed in Rwanda.137 The UN Special Rapporteur for Rwanda,
appointed by the Commission on Human Rights, reached a similar conclusion.138
The Government of Rwanda requested that the Security Council establish as soon
as possible an international tribunal to prosecute those who had committed the
genocide. It noted that the continued presence of alleged criminals was disrupting
efforts to return refugees and was ‘diluting’ the question of genocide having been
committed in Rwanda.139

UNSC Res 935 (1994) UN Doc S/RES/935.

135

UNSC, ‘Preliminary Report of the Independent Commission of Experts Established in

136

Accordance with Security Council Resolution 935’ (1994) UN Doc S/1994/1125.

137
ibid, paras 133–42.
138
‘Report on the Situation of Human Rights in Rwanda Submitted by the Special Rapporteur of
the Commission on Human Rights, in Accordance with Commission resolution S-3/1 and Economic
and Social Council Decision 1994/223’ (1994) UN Doc A/49/508-S/1994/1157.
139
UNSC, ‘Letter Dated 28 September 1994 from the Permanent Representative of Rwanda to the
United Nations Addressed to the President of the Security Council’ (1994) UN Doc S/1994/115.

In November 1994 the Security Council established the International Criminal

Tribunal for Rwanda (ICTR), an international tribunal for the purposes of pros-
ecuting the people responsible for genocide and other serious violations of inter-
national humanitarian law committed in the territory of Rwanda, and Rwandan
citizens responsible for genocide and other such violations committed in the ter-
ritory of neighbouring states, between 1 January 1994 and 31 December 1994.140
Unlike the conflict(s) in the former Yugoslavia, the genocide in Rwanda was an
internal affair. However, the Security Council recognised that the situation in
Rwanda constituted a threat to international peace and security. As with
Resolution 827 establishing the ICTY, the Security Council expressly relied upon
its powers under Chapter VII of the Charter.141 Rwanda, which had originally sup-
ported the establishment of an international tribunal, voted against the resolution
for reasons primarily related to the exclusion of the death penalty as a possible
sentencing option.142 The ICTR may exercise jurisdiction in relation to genocide,
crimes against humanity, and violations of common article 3 of the Geneva
Conventions and of Additional Protocol II,143 reflecting the non-international
nature of the conflict in Rwanda. Like the ICTY, its judges and personnel are
international appointments, and there is no requirement for Rwanda to be repre-
sented. The first judges were elected by the General Assembly in May 1995 and the
first accused arrived in May 1996. The first indictment was issued in November
1995,144 the first trial started in January 1997145 and the first judgment was issued
in September 1998.146 As at July 2011, the ICTR has delivered 49 judgments affect-
ing 66 accused. Trials are ongoing for six cases concerning 10 accused, one accused
is awaiting trial and nine accused remain at large.147

iii. The Development of the Completion Strategy

The establishment of the ICTY and the ICTR were significant steps in the devel-
opment of international criminal law, both in terms of its substantive content and
enforcement. For the first time since the end of the Second World War, interna-

140
Statute of the International Criminal Tribunal for Rwanda (as established by Security Council
Resolution 955 (1994) of 8 November 1994) (ICTR Statute) UN Doc S/RES/955. For a detailed discus-
sion of the development of the ICTR, see Schabas, The UN International Criminal Tribunals: The
Former Yugoslavia, Rwanda and Sierra Leone, n 121.
141
Resolution 955 was put to a vote in the Security Council, with 13 members voting in favour, one
abstention (China) and one, Rwanda – which happened to be a member of the Security Council at the
time – voting against.
142
UNSC Verbatim Record (8 November 1994) UN Doc S/PV/3453.
143
ICTR Statute, arts 2 (genocide), 3 (crimes against humanity) and 4 (violations of common art 3
and APII).
144
Prosecutor v Kayishema and Ruzindana (Original Indictment) ICTR-95-1-A (issued 22 November
1995 and confirmed 28 November 1995).
145
Prosecutor v Akayesu ICTR-96-4-T. The trial commenced on 9 January 1997.
146
Prosecutor v Akayesu (Judgment) ICTR-96-4-T, T Ch I (2 September 1998).
147
UNSC, ‘Report on the Completion Strategy for the International Criminal Tribunal for Rwanda
as at 12 May 2011’ UN Doc S/2011/317, as updated by reference to ICTR website on 27 July 2011.

tional criminal tribunals were established to investigate, prosecute and try indi-
viduals accused of committing international crimes of the most grave and serious
nature. The ad hoc tribunals promised the highest standards of international
criminal justice, being sanctioned, established and supported by the Security
Council. Hopes and expectations were high, particularly among the people of
Rwanda and the former Yugoslavia. Yet by the fourth or fifth year of the opera-
tion of the tribunals there was a growing sense of disillusionment. Concerns were
mounting amongst the Member States of the United Nations, the Secretariat and
the tribunals themselves about the performance and efficiency of the tribunals.148
The tribunals proved to be an expensive means of securing accountability.149
Member States were reluctant to continue paying the vast amounts required for
the tribunals from assessed contributions on an indefinite basis, at least without
any improvement in efficiency. Perhaps more worryingly, trials before the tribu-
nals were very long, beyond the ‘acceptable’ duration of trials required by interna-
tional human rights standards and jurisprudence. Due to backlogs in reaching
trial, many accused faced considerable delay in their case reaching trial, causing
many to undergo unacceptable periods of pre-trial detention.150 The tribunals had
delivered few final verdicts and several key figures in the conflicts, particularly
those in the former Yugoslavia, remained at large, with little likelihood of appre-
hension. Those trials that had occurred had tended to focus on lower-level or
intermediate perpetrators.
These concerns led to a process of evaluation and review of the tribunals’ per-
formance, seeking to improve the efficiency and effectiveness of the tribunals and
to stem the growing criticism of the delays in trials and length of detention. The
Security Council turned its attention to the date when the open-ended mandate
of the tribunals could (or would) end. The Council asked the Secretary-General to
submit to it a report containing an assessment and proposals regarding ‘the date
ending the temporal jurisdiction’ of the ICTY.151 The Security Council did not
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make such a request for the ICTR, although it did refer to the need for both tribu-
nals to expedite their work and to continue progress towards improving their
procedures.152 In August 2003, a strategy to end the temporal jurisdiction of the
tribunals was included in the operative part of a Security Council resolution,
Resolution 1503, for the first time.153 The Resolution called upon the tribunals
‘to take all possible measures to complete investigations by the end of 2004, to
148
See D Raab, ‘Evaluating the ICTY and its Completion Strategy: Efforts to Achieve Accountability
for War Crimes and Their Tribunals’ (2005) 3 Journal of International Criminal Justice 82, 96.
149
For biennium 2010–11, the General Assembly approved the ICTR biennial budget of
US$245,295,800 gross (US$227,246,500 net) and the ICTY biennial budget of US$301,895,900 net.
150
See: S Bourgon, ‘Procedural Problems Hindering Expeditious and Fair Justice’ (2004) 2 Journal of
International Criminal Justice 526, ‘the length of the proceedings, at all stages [which] appears to be
uncontrollable’, 527. The judges have addressed the problem of pre-trial detention to some extent by
adopting a more flexible policy, with provisional release now the presumption provided certain
requirements are satisfied.
151
UNSC Res 1329 (2000) UN Doc S/RES/1329, 6.
152
ibid, preambular paras 5 and 6.
153
UNSC Res 1503 (2003) UN Doc S/RES/1503.

complete all trial activities at first instance by the end of 2008, and to complete all
work in 2010’.154 This is known as the ‘completion strategy’ of the tribunals. In a
non-operative paragraph the Security Council urged the ICTR to formalise a
detailed strategy (modelled on the ICTY strategy) to transfer cases to national
jurisdictions in order to allow the ICTR to meet similar completion targets.155 It
also requested the presidents and prosecutors of the tribunals to explain their
plans to implement the completion strategy in their annual reports to the Security
Council.156 Both tribunals have not met the deadlines initially set by the comple-
tion strategy, ie the end of 2008 for the completion of trial activities and the end of
2010 for the completion of all judicial activities. In their most recent reports, the
President of the ICTY indicated that trials should be completed by the end of
2013, with the aim for appeals to be concluded by late 2014,157 while the President
of the ICTR indicated that trials would be completed by the end of 2011, with
appeals to be completed in 2013.158 In December 2010, the Security Council estab-
lished the International Residual Mechanism for Criminal Tribunals, which shall
continue the jurisdiction, rights and essential functions of the ICTY and the ICTR.
This will allow the Mechanism to fulfil the residual functions of the ad hoc tribu-
nals following their closure.159

iv. Relationship between the Ad Hoc Tribunals and National Jurisdictions

a. Deferrals

The ad hoc tribunals may exercise jurisdiction with respect to the crimes of geno-
cide, crimes against humanity and war crimes.160 They thus enjoy concurrent
jurisdiction for these crimes with national jurisdictions. Their establishment
therefore raised the sensitive issue of an international criminal court exercising
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jurisdiction over crimes committed within the territory of a state, and the proper
relationship between the international tribunal and the national courts. In resolv-
154
ibid, para 7.
155
ibid, preambular para 8. This obligation was included in an operative paragraph in a subsequent
resolution: UNSC Res 1534 (2004) UN Doc S/RES/1534, para 4.
156
A further reporting obligation was imposed by Resolution 1534 (2004), which requires each tri-
bunal to provide to the Security Council every six months an assessment by its President and its
Prosecutor, ‘setting out in detail the progress made towards implementation of the Completion
Strategy’: para 6.
157
UNSC, ‘Identical Letters Dated 28 October 2010 from the Permanent Representative of Tajikistan
to the United Nations Addressed to the Secretary-General and the President of the Security Council’ (1
November 2010) UN Doc S/2010/558.
158
UNSC, ‘Letter dated 5 November 2010 from the President of the International Criminal Tribunal
for Rwanda Addressed to the President of the Security Council’ (5 November 2010) UN Doc
S/2010/574.
159
UNSC Res 1966 ‘Resolution on the establishment of the International Residual Mechanism for
Criminal Tribunals with Two Branches’ (2010) UN Doc S/RES/1966(2010), paras 1 and 4.
160
ICTY Statute, arts 2 (grave breaches), 3 (violations of the laws and customs of wars), 4 (geno-
cide) and 5 (crimes against humanity). ICTR Statute, arts 2 (genocide), 3 (crimes against humanity)
and 4 (violations of common art 3 to the Geneva Conventions and of Additional Protocol II).

ing this potential conflict, the Statutes of the tribunals confer primacy for the
ICTY and the ICTR in respect of national prosecutions. Consequently, the tribu-
nals may request national authorities to defer national proceedings to allow the
tribunal to exercise its own jurisdiction.161 Thus primacy acknowledges, to a
degree, the sovereignty of states by requiring them to defer to an international
tribunal.162 That the Security Council may confer primacy on an international
criminal tribunal it has established has been confirmed by both the Trial and
Appeals Chambers of the ICTY, with the Appeals Chamber stating that primacy
was indeed essential if the tribunal was to fulfil its mandate. The Chamber noted
that, without primacy, states may use various strategies to undermine the work of
the tribunal, including the characterisation of international crimes as ‘ordinary
crimes’.163 Both tribunals have maintained support for the principle of primacy
in their practice, and have requested the deferral of national proceedings on
occasion.164
Given the principle of primacy’s interference with the normal domain of a state
to enforce violations of criminal law within its own boundaries, it was controver-
sial. Several members of the Security Council, including four permanent mem-
bers, made statements clarifying their understanding of the concept.165 Such
statements revealed differences of opinion as to the scope of the principle, with
several members of the Council suggesting an interpretation of primacy that is
more consistent with the principle of complementarity. Such statements appeared
to consider that primacy would only apply in ‘exceptional circumstances’, in par-
ticular those listed in article 10 of the ICTY Statute.166 In addition, some states
have voiced narrow views of the principle when processing requests for deferral
under national law.167
161
ICTY Statute, art 9. See also Rules of Procedure and Evidence for the International Criminal
Tribunal of the Former Yugoslavia (adopted 11 February 1994, entry into force 14 March 1994) (ICTY
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

RPE) UN Doc IT/32/Rev.45, rr 8–13; ICTR Statute, art 10; ICTR Statute, art 10; Rules of Procedure
and Evidence of the International Criminal Tribunal for Rwanda (adopted and entered into force
29 June 1995) (ICTR RPE), rr 8–13.
162
See B Brown, ‘Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and
International Criminal Tribunals’ (1998) 23 Yale Journal of International Law 383.
163
Tadić Jurisdiction Decision, paras 58–59.
164
eg, the first accused to appear before the ICTY was surrendered to the ICTY by German authori-
ties following a request for deferral.
165
See UNSC Verbatim Record (25 May 1993) UN Doc S/PV.3217 (1993). Statements were made by
representatives of the United Kingdom, France, United States and Russian Federation. For more
detailed discussion see Brown, n 162, and M El Zeidy, ‘The Principle of Complementarity: A New
Machinery to Implement International Criminal Law’ (2001–02) 23 Michigan Journal of International
Law 869.
166
Art 10 allows retrial by the ICTY where national proceedings were not impartial or independent
or were designed to shield the accused. See in particular the UK Statement, which also suggested that
primacy applied only to the states of the former Yugoslavia. This approach was rejected in the ICTR
Statute, which clearly notes that the primacy of the ICTR applies to all states. The statement of the
Russian Federation went further, which interpreted primacy to refer to ‘the duty of a State to give very
serious consideration to a request by the Tribunal to refer to it a case that is being considered in a
national court’.
167
See, eg, the proceedings before US courts in relation to the ICTR’s request for the deferral of
proceedings concerning Ntakirutimana, accused of genocide. Despite the willingness of the US

The rationale for the jurisdictional priority given to the ICTY (and the ICTR) is
the nature of the events leading to their establishment. As Brown notes:168
Each of the ad hoc tribunals was specifically created to protect compelling humanitar-
ian interests in the context of a situation identified as a threat to international peace and
security. Extraordinary measures are justified to deal with such a situation, and, in the
cases of the former Yugoslavia and Rwanda, they have been formally authorised under
the UN Charter. All cases within the jurisdiction of the ad hoc tribunals involve funda-
mental humanitarian interests of concern to the international community as a whole . . .
Each of the ad hoc tribunals was created to address a threat to international peace and
security – the maintenance of which is the primary purpose of the United Nations . . .
The primacy of the International Tribunal is thus justifiable as a necessary response to a
threat of this kind and enjoys the same legally binding force as any formal decision of
the Security Council.

Thus, the establishment of the ICTY and the ICTR ‘represents the high-water
mark for the primacy of international criminal tribunals over national courts’.169
The interference with the sovereign right of a state to enforce its own criminal
laws was justified in each case by the interest of the international community in
preserving the values at stake; the humanitarian values and the threat to interna-
tional peace and security. That the tribunals were ad hoc and not permanent insti-
tutions, with limited personal, temporal, substantive and territorial jurisdiction,
also made the impact on sovereignty more acceptable to Member States in each
case.170 However, in any event, the tribunals did not adhere to a model of absolute
primacy. Instead, in several cases the Prosecutors of the tribunals effectively
deferred to national proceedings by refraining from exercising primacy and by
calling for the proceedings to be transferred to the national forum. This exercise
of the discretionary powers of the Prosecutor ‘reflects a sort of concurrence and
complementarity that functions alongside the existing system of primacy, and
resulted from the division of labour on the basis of co-operation between the
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tribunals and domestic jurisdictions’.171 This trend has been furthered by the
adoption of the completion strategy for the tribunals, and the related process of
referring cases to national authorities.

Government to cooperate with the tribunal, the magistrate refused the request on the basis that to
allow transfer of the accused to the ICTR in the absence of an extradition treaty would violate consti-
tutional guarantees. While this decision was eventually overturned, it demonstrated a failure to appre-
ciate the different nature of the request from the ICT: see Brown, ibid, 411–13; M Coombs, ‘In Re
Surrender of Ntakirutimana’ (2000) 94 American Journal of International Law 171; J Godinho, ‘The
Surrender Agreements Between the US and the ICTY and the ICTR: A Critical View’ (2003) 1 Journal
of International Criminal Justice 502.
168
Brown, n 162, 407–08, emphasis in original.
169
Brown, n 162, 385.
170
J Holmes, ‘The Principle of Complementarity’ in R Lee (eds), The International Criminal Court:
the Making of the Rome Statute: Issues, Negotiation, Results (Leiden, Martinus Nijhoff Publishers, 1999).
171
M El Zeidy, ‘From Primacy to Complementarity and Backwards: (Re)-Visiting Rule 11 Bis of the
Ad Hoc Tribunals’ (2008) 57 International and Comparative Law Quarterly 403, 407.

b. Referrals

An essential element of achieving the completion strategy is the transfer of trials

to national jurisdictions. This raises, again, the need to examine the proper rela-
tionship between international and national criminal institutions. As the ad hoc
tribunals have been encouraged to achieve the completion strategy over recent
years, attention has been directed at how to increase the role and capacity of
national jurisdictions, both of the territorial state(s) and other states willing to
exercise jurisdiction in respect of international crimes. Both tribunals have intro-
duced a Rule 11bis to their Rules of Procedure and Evidence (RPE). This rule
enables the referral of proceedings concerning lower and intermediate level
accused to national jurisdictions from the tribunals,172 thus freeing up capacity
within the international tribunals and encouraging the development of capacity
in national courts.
Cases may be referred to the authorities of the state: (1) in whose territory the
crime was committed; (2) in whose territory the accused was arrested; or (3) hav-
ing jurisdiction and being willing and adequately prepared to accept such a case.173
Thus it is possible that a case may be referred to a state exercising universal juris-
diction and that more than one state may wish to receive a particular referral.174
The ICTY has denied that a hierarchy favouring the territorial state is established
by the possible destinations for referral listed in Rule 11bis.175 Instead, the Appeals
Chamber has indicated that the preference to be accorded to a particular jurisdic-
tion is to be assessed on a case-by-case basis, and, where more than one state may
be the recipient of a referral, the case should be referred to the state having the
‘greatest nexus’ to the accused.176 Before authorising a referral, the tribunal must
be satisfied that the level of responsibility of the accused and the gravity of the
crimes charged in the indictment are consistent with a referral.177 It must then be
satisfied that the accused will receive a fair trial after referral and that the death
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penalty will not be imposed or carried out.178 The Prosecutor may send observers
to monitor the proceedings before the national court179 and, where the reports are

172
This reflects the introduction of the seniority requirement for the tribunals by the Security
Council as part of the completion strategy: see UNSC Res 1503 (2003) UN Doc S/RES/1503 and
UNSC Res 1534 (2004) UN Doc S/RES/1534.
173
ICTY RPE, r 11bis(A); ICTR RPE, r 11bis(A).
174
For a discussion of the various bases of jurisdiction included in r 11bis, see O Bekou, ‘Rule 11 bis:
An Examination of the Process of Referrals to National Courts in ICTY Jurisprudence’ (2010) 33
Fordham International Law Journal 723.
175
Prosecutor v Mejakić (Decision on Prosecutor’s Motion for Referral of Case Pursuant to Rule 11
bis) ICTY-02-65 (20 July 2005) para 40. The ICTY Prosecutor has argued that r 11bis does reflect such
a hierarchy – see Prosecutor v Ljubiĉić (Decision to Refer the Case to Bosnia and Herzegovina Pursuant
to Rule 11 bis) ICTY-00-41 (12 April 2006) para 25.
176
Prosecutor v Jankovic (Decision on Rule 11bis Referral) ICTY-96-23/2 (15 November 2005) paras
33–37.
177
This is required by ICTY RPE r 11bis(C); and UNSC Res 1534 (2004) UN Doc S/RES/1534. It is
not expressly stated in r 11bis in the ICTR RPE.
178
ICTY RPE, r 11bis(B); ICTR RPE, r 11bis(C).
179
ICTY RPE, r 11bis(D); ICTRRPE r 11bis(D).

not satisfactory (including where fair trial standards have not been met), the
Prosecutor may request that the referral be revoked and proceedings returned to
the international level.180
From 2005 to 2007, the ICTY referred eight cases to national authorities in the
states of the former Yugoslavia. Two accused were referred to Croatia, one accused
to Serbia and 10 accused to Bosnia and Herzegovina. The tribunal refused requests
for referral in respect of four accused due to the alleged level of responsibility and
the gravity of the crimes charged. No further cases are to be referred, as all accused
are considered to be senior level offenders so that it would not be appropriate to
refer to national jurisdictions,181 although the ICTY continues to send investiga-
tive files and other information to national prosecutors in the region. The ICTY
Referral Bench has adopted a formalistic approach to the question of referrals and
the need to ensure a fair trial. It has held that, provided the national legal frame-
work adequately provides for a fair trial, the ICTY is under no obligation at the
time of referral to confirm that the protections are realised.182 Instead, the ICTY
relies on monitoring of the proceedings by the Organization for Security and
Co-operation in Europe (OSCE) and the possibility of revoking the order for
deferral as appropriate safeguards of the right to fair trial.183 Of the cases that have
been referred from the ICTY to national jurisdictions, proceedings against 11
accused have been finalised, with appellate proceedings pending against one
accused and another accused unable to stand trial for medical reasons.184
In contrast, the ICTR has encountered more difficulty with referring cases to
national jurisdictions. The requirement that the accused must receive a fair trial
in the national jurisdiction has so far precluded referral of cases to Rwanda.
Initially the justice system in Rwanda was considered to fall short of international
fair trial standards and the availability of the death penalty as a sentencing option
for crimes within the jurisdiction of the ICTR precluded referrals. Concerns
regarding the proper functioning of the national legal system have also proved
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problematic for other states contemplating extraditing individuals to face trial in

Rwanda. For example, in 2009 a court in the United Kingdom denied the extradi-
tion to Rwanda of four individuals suspected of genocide, finding that the indi-
viduals faced a real risk of a flagrant denial of justice were they to be extradited.185

180
ICTY RPE, r 11bis(F); ICTR RPE, r 11bis(F),
181
ICTY, ‘Report on the Completion Strategy’ (1 November 2010) UN Doc S/2010/588, para 70. For
a discussion of the jurisprudence of the ICTY referral bench under r 11bis, see S Williams, ‘Referrals to
National Courts: A Fair Trial or a Fair Price?’ (2006) 17(2) Criminal Law Forum 177–222. Note, how-
ever, the establishment of the residual mechanism, discussed below.
182
Prosecutor v Todović & Rašević (Decision on Savo Todovic’s Appeal Against Decisions on Referral
Under Rule 11bis) ICTY-97-25/1 (4 September 2006) para 56.
183
Rule 11bis(D)(iv) provides that the Prosecutor may send observers to monitor the national pro-
ceedings. The Office of the Prosecutor entered into an agreement with the Organization for Security
and Co-operation in Europe for the monitoring of trials for referred cases.
184
ICTY, ‘Report on the Completion Strategy’ (1 November 2010) UN Doc S/2010/588.
185
Brown et al v The Government of Rwanda and the Secretary of State for the Home Department
[2009] EWHC 770 (Admin). For discussion, see M Drumbl, ‘Prosecution of Genocide v. The Fair Trial
Principle’ (2010) 8 Journal of International Criminal Justice 289.

With the objective of referrals to Rwanda as part of the ICTR Completion

Strategy, the Government of Rwanda reformed the relevant national law to
address concerns regarding the legal framework.186 It also abolished the death
penalty in 2007.187 The ICTR Prosecutor promptly filed five requests for the refer-
ral of cases to national courts in Rwanda. All requests were rejected, on the basis
that national laws and procedures did not adequately guarantee a fair trial for the
accused, even taking into account the improvements to the domestic legal sys-
tem.188 The ICTR has adopted a strict approach to referrals to Rwanda, relying on
a mixed legal and factual test in relation to the applicable legal framework in
Rwanda. It has required evidence both that the domestic legal framework in
Rwanda is sufficient and that the law is applied in practice.189 This is a more strin-
gent approach than that adopted by the ICTR in relation to referrals to states
other than Rwanda, and by the ICTY Referral Bench regarding referral of cases to
authorities in the states of the former Yugoslavia.190 It requires the national courts
in Rwanda to meet the international standards required by the ICTR, while allow-
ing limited flexibility to the national authorities as to how that is to be achieved.
Following continued efforts by the Government of Rwanda to reform national
law to address the concerns of the ICTR, the ICTR Prosecutor filed a second series
of requests for referral of three accused to the courts of Rwanda.191 In June 2011,
the Referral Chamber authorised the referral of Jean Uwinkindi for trial in
Rwanda, concluding that, in the years since its previous decision on the referral of
cases to Rwanda:192
Rwanda has made material changes in its laws and has indicated its capacity and will-
ingness to prosecute cases referred by this Tribunal. This gives the Referral Chamber
confidence that the case of the Accused, if referred, will be prosecuted consistent with
internationally recognised fair trial standards enshrined in the Statute of this Tribunal
and other human rights instruments.
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186
See Organic Law No 11/2007 Concerning Transfer of Cases to the Republic of Rwanda from the
International Criminal Tribunal for Rwanda and from Other States [Rwanda] (16 March 2007).
187
See Organic Law No 31/2007 (Death Penalty Abolition Law) [Rwanda] (25 July 2007). This law
was further amended in 2008 to resolve uncertainty as to the effect of abolishing the death penalty on
sentencing.
188
Most recently, Prosecutor v Hategekimana (Decision on the Prosecutor’s Appeal Against Decision
on Referral Under Rule 11bis) ICTR-2000-55B-R11bis (4 December 2008) para 40, noting that, due to
differences in the ability to call defence witnesses under Rwandan law, the accused’s right to a fair trial
cannot be guaranteed.
189
For discussion, see J Melman, ‘The Possibility of Transfer(?): A Comprehensive Approach to the
International Criminal Tribunal for Rwanda’s Rule 11BIS to Permit Transfer to Rwandan Domestic
Courts’ (2010) 79 Fordham Law Review 1271.
190
ibid.
191
Requests were made on 4 November 2010 in respect of Uwinkindi, Kayishema and Sikubwabo: see
ICTR, Press Release, ‘Prosecutor Files New Applications for Referral of Cases to Rwanda’ (4 November
2010) ICTR Doc ICTR/INFO-9-2-657.EN.
192
Prosecutor v Jean Uwinkindi (Decision on Prosecutor’s Request for Referral to the State of
Rwanda) ICTR-2001-75-R11bis, Referral Ch (28 June 2011) para 223. The Referral Bench also noted
that it has received assurances that a ‘robust monitoring mechanism’ would be in place: para 223.

The ICTR Prosecutor has also sought to rely on Rule 11bis to request the referral
of cases to a state having jurisdiction and willing and adequately prepared to pros-
ecute the case. The Prosecutor sought to have the trial of Michel Bagaragaza
referred to Norway; however the ICTR refused to approve the requested referral
on the basis that the Norwegian law did not recognise the crime of genocide and
that a trial for murder was the only possibility.193 The Prosecutor then had the case
referred to the Netherlands (where the accused had been held for security
reasons).194 However, the initial order for transfer was revoked when a Dutch
court found that it did not have jurisdiction in respect of the crimes alleged to
have been committed.195 Ultimately, Bagaragaza faced trial before the ICTR.196 In
2007, the ICTR approved referral of two accused for trial in France.197 In approv-
ing these request for referrals, the ICTR adopted a strictly legal – and not factual
– approach to the question of whether the intended legal system would satisfy fair
trial standards, similar to that adopted by the ICTY Referral Bench. This appears
to be based on an acceptance that the legal systems in question meet established
fair trial guarantees.
The emphasis on the referral of cases to national jurisdictions is a ‘retreat from
the Tribunal’s exercise of primacy’.198 Burke-White has suggested that the adop-
tion of the Completion Strategy ‘altered the jurisdictional relationship between
the ICTY and the institutions of BiH [Bosnia and Herzegovina]’ and ‘has essen-
tially shifted the governance structure from one of absolute international primacy
toward a new relationship with incentives similar to those of complementarity’.199
By enabling the ICTY and the ICTR to consider the ‘suitability’ of national juris-
dictions to conduct proceedings in relation to referred cases, and to monitor and
recall those proceedings if they are perceived to be inadequate or unsatisfactory,
the relationship between the ICTY and the ICTR and national jurisdictions more
closely resembles that of complementarity.200 As El Zeidy notes, the system of
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193
Prosecutor v Michel Bagaragaza (Decision on the Prosecution Motion for Referral to the Kingdom
of Norway) ICTR-2005-86-R11bis, T Ch III (19 May 2006).
194
Prosecutor v Michel Bagaragaza (Decision on the Prosecution Motion for Referral to the Kingdom
of the Netherlands) ICTR-2005-86-11bis, T Ch III (13 April 2007).
195
For discussion of the associated Dutch decisions, see C Ryngaert, ‘The Failed Referral of Michel
Bagaragaza from the ICTR to the Netherlands’, Hague Justice Portal www.haguejusticeportal.net/
eCache/DEF/11/116.html; and L van den Herik, ‘A Quest for Jurisdiction and an Appropriate
Definition of Crime’ (2009) 7 Journal of International Criminal Justice 1117.
196
Prosecutor v Michel Bagaragaza (Sentencing Judgment) ICTR-2005-86-S, T Ch III (17 November
2009).
197
Prosecutor v Munyeshyaka (Trial Chamber Decision on Referral) ICTR-2005-87-I, T Ch (20
November 2007); Prosecutor v Bucyibaruta (Decision On Prosecutor’s Request For Referral Of Laurent
Bucyibaruta’s Indictment To France) ICTR-2005-85-I, T Ch (20 November 2007). Investigations in
France are continuing.
198
S Somers, ‘Rule 11bis of the International Criminal Tribunal for the Former Yugoslavia: Referral
of Indictments to National Courts’ (2007) 30 Boston International and Comparative Law Review 175,
176.
199
W Burke-White, ‘The Domestic Influence of International Criminal Tribunals: The International
Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia and
Herzegovina’ (2008) 46 Columbia Journal of Transnational Law 297, 319 and 320. See also Melman, n 189.
200
ibid.

complementarity and the process of referrals ‘draw the balance between the cases
to be tried internationally with the limited resources at hand, and ensuring that
only cases of extreme gravity are being dealt with at the international level, while
those of lesser magnitude are the responsibility of domestic courts’.201
This shift towards a more complementary relationship is reflected in the transi-
tional arrangements to follow the closure of the ICTY and the ICTR. The Statute
of the Mechanism restates the concurrent jurisdiction between the Mechanism
and national jurisdictions, as well as the primacy of the Mechanism and the ability
to require states to defer proceedings.202 However, it emphasises the importance
of the Mechanism referring cases to national jurisdictions, providing that only
cases concerning the most senior leaders suspected of being most responsible for
the crimes within the subject matter jurisdiction of the Tribunals should be dealt
with by the Mechanism, taking into account the gravity of the crimes charged and
the level of responsibility.203 This reflects the seniority and gravity requirements
previously set out by the Council as part of the Completion Strategy.204 The
Mechanism may only try cases concerning other accused ‘after it has exhausted all
reasonable efforts to refer the case [to national jurisdictions]’.205 The tribunals and
the Mechanism are urged to undertake every effort to refer cases other than those
concerning senior level accused or those most responsible for the commission of
international crimes to competent national jurisdictions.206 Article 6 provides for
the referral of cases to national jurisdictions in terms reflecting Rule 11bis of the
RPE of the tribunals. Thus, cases may be referred to the authorities of: (1) the ter-
ritorial state; (2) the arresting state; or (3) a state having jurisdiction and being
willing and adequately prepared to accept such a case.207 The Statute confirms that
only cases of lesser gravity offences or lower levels of responsibility are to be
referred.208 Resolution 1966 also requires states to cooperate fully with the
Mechanism, including taking any measures necessary under their domestic law to
implement its provisions and the Statute.209 It then calls upon states to ‘cooperate
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to the maximum extent possible in order to receive referred cases’.210

201
El Zeidy, ‘From Primacy to Complementarity and Backwards: (Re)-Visiting Rule 11 Bis of the Ad
Hoc Tribunals’, n 171, 414.
202
Statute of the International Residual Mechanism for Criminal Tribunals, UNSC Res 1966
‘Resolution on the establishment of the International Residual Mechanism for Criminal Tribunals
with Two Branches’ (2010) UN Doc S/RES/1966(2010) Annex 1 (Statute of the Mechanism), art 5. It
also restates the non bis in idem provisions from the Statutes of the tribunals.
203
Statute of the Mechanism, art 1(2).
204
UNSC Res 1534 (2004) UN Doc S/RES/1534.
205
Statute of the Mechanism, art 1(3).
206
UNSC Res 1966, ‘Resolution on the establishment of the International Residual Mechanism for
Criminal Tribunals with Two Branches’ (2010) UN Doc S/RES/1966(2010) para 11.
207
Statute of the Mechanism, art 6(2).
208
Statute of the Mechanism, art 6(3).
209
UNSC Res 1966, ‘Resolution on the establishment of the International Residual Mechanism for
Criminal Tribunals with Two Branches’ (2010) UN Doc S/RES/1966(2010) para 9.
210
UNSC Res 1966, ‘Resolution on the establishment of the International Residual Mechanism for
Criminal Tribunals with Two Branches’ (2010) UN Doc S/RES/1966(2010) para 12.

The potential role of the Mechanism in relation to the trial of persons indicted
by the ICTY will now be quite limited, as all fugitives have now been detained and
transferred to the custody of the tribunal.211 The impact may be greater for the
ICTR, where nine accused remain at large. Applications seeking the referral of
two cases concerning two fugitives to Rwanda are pending before the ICTR.212 Of
the remaining seven fugitives, it appears that not all would be appropriate for
referral to a national court due to the requirement that only the lower and inter-
mediate level accused to be referred.213

v. Conclusion: The Ad Hoc Tribunals and Their Contribution to

International Criminal Justice

The ICTY and the ICTR have had a significant impact upon the development of
international criminal law, both substantive and procedural.214 However, as non-
permanent institutions their reach is significantly limited due to their narrow
substantive, territorial, personal and temporal jurisdiction, and their ad hoc basis;
they can never provide an end to impunity globally. Moreover, the serious issues
with costs, delay and inefficiency presented by the operation of the tribunals
means that it is unlikely that such tribunals will be established in future.215 Even
where such institutions are to be considered in future, given the political nature of
the Security Council, their establishment will always be politicised and highly
selective.216 The tribunals do illustrate the possible benefits of international pros-
ecution, the ability to override state sovereignty, the power of a mandate from the
Security Council under Chapter VII of the Charter, independence and impartial-
ity, and the support of the international community. Yet they also demonstrate
the possible limitations of international prosecution. Until the adoption of the
completion strategy directed attention at the capacity of national jurisdictions in
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the affected states, the tribunals had a minimal impact on building national legal
capacity.217 In addition, the tribunals have been perceived as removed from
211
Mladi ć was transferred by Serbian authorities to the ICTY in May 2011, with the remaining fugi-
tive, Goran Hadži ć , transferred in July 2011.
212
ICTR, Press Release, ‘Prosecutor Files New Applications for Referral of Cases to Rwanda’
(4 November 2010) ICTR Doc ICTR/INFO-9-2-657.EN.
213
eg, Protais Mpiranya formerly held the role of Commander of the Presidential Guard Battalion
within the High Command of the Rwandan Army. He is charged with genocide, crimes against humanity
and war crimes. With his role indicating significant seniority and apparent responsibility, the Mechanism
would likely be the most appropriate forum for any trial of Mpiranya should he be arrested.
214
See R Zacklin, ‘The Failings of Ad Hoc International Tribunals’, (2004) 2 Journal of International
Criminal Justice 541; A Cassese, ‘The ICTY: A Living and Vital Reality’ (2004) 2 Journal of International
Criminal Justice 585; G McDonald, ‘Problems, Obstacles and Achievements of the ICTY’ (2004) 2
Journal of International Criminal Justice 558; E Mose, ‘Main Achievements of the ICTR’ (2005) 3
Journal of International Criminal Justice 920.
215
Zacklin, ibid, 545.
216
Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime, n 6.
217
See W Burke-White, ‘The Domestic Influence of International Criminal Tribunals: The
International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of
Bosnia & Herzegovina’ (2008) 46 Columbia Journal of Transnational Law 279.

affected populations and as ‘imposed justice’. The tribunals initially favoured the
international approach, relying upon the primacy of international institutions
over national courts and the ability to require deferral of national proceedings in
favour of those at the international level, with no consideration as to the appro-
priateness and standard of the national proceedings. However, their relationship
with national courts has gradually become less competitive, as is reflected in
the completion strategy and its commitment to referrals to national courts, the
tribunals’ increased support for national prosecutions in the region, including its
outreach and the provision of technical assistance to national courts.

C. The International Criminal Court

i. Establishment

While the ad hoc international tribunals certainly had their failings, their estab-
lishment was an important step in reigniting interest in the creation of a perma-
nent international criminal court. As noted above, early efforts to establish such a
court had stalled amidst the tension of the Cold War period.218 While the General
Assembly had invited the International Law Commission to resume its work on
the Draft Code of Offences against the Peace and Security of Mankind in 1981,219
which the Commission eventually concluded in 1996,220 the draft code did not
provide for the body that would have jurisdiction to try such offences. In 1989 the
General Assembly requested the International Law Commission to address, as
part of its work on the draft code, ‘the question of establishing an international
criminal court or other international criminal trial mechanism with jurisdiction
over persons alleged to have committed crimes which may be covered under such
a code’.221 The Commission submitted the final version of its draft statute for an
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

international criminal court to the General Assembly in 1994.222

Both the draft code and the draft statute were to play a significant role in the
development of the Rome Statute some years later.223 The ICC was established by
a treaty, the Rome Statute. The Rome Statute was adopted on 17 July 1998 by 120
218
For an introduction to the background to the ICC, see W Schabas, An Introduction to the
International Criminal Court, 4th edn (Cambridge, Cambridge University Press, 2011).
219
UNGA Res 36/106 (10 December 1981) UN Doc A/RES/36/106.
220
International Law Commission, ‘Draft Code of Crimes against the Peace and Security of
Mankind, Report of the International Law Commission 48th Session’ II(2) (1996) Yearbook of the
International Law Commission 17.
221
UNGA Res 44/39 (4 December 1989) UN Doc A/RES/44/39, para 1.
222
International Law Commission, ‘Draft Statute for an International Criminal Court’ (1994) vol
II(2)Yearbook of the International Law Commission, UN Doc A/CN.4/SER.A/1992/Add.l(Part 2) See:
J Crawford, ‘The ILC’s Draft Statute for an International Criminal Tribunal’ (1994) 88 American
Journal of International Law 140 and J Crawford, ‘The ILC Adopts a Statute for an International
Criminal Court’ (1995) 89 American Journal of International Law 404.
223
For an introduction to the background to the ICC, see Schabas, An Introduction to the
International Criminal Court, n 218; P Kirsch and J Holmes, ‘The Birth of the International Criminal
Court: The 1998 Rome Conference’ (1998) 36 Canadian Yearbook of International Law 3.

states, with 21 abstentions and seven votes against, including the United States,
Israel and China.224 States were given until 31 December 2000 to sign the Rome
Statute as an initial step signalling their intent to ratify the treaty.225 By that date
139 states had signed the treaty, including some states (like the United States)226
that had initially opposed the adoption of the Rome Statute at the Rome
Conference. The Rome Statute required 60 ratifications or accessions for it to
enter into force.227 This occurred on 11 April 2002, when 10 states deposited
instruments of ratification simultaneously. The Rome Statute entered into force
on 1 July 2002, the date that was the first day of the month following a period of
60 days after the sixtieth ratification or accession.228 This date is highly significant
because the ICC has only prospective jurisdiction; that is, it may only exercise
jurisdiction in respect of situations arising after the date of the entry into force of
the Rome Statute.229 The Assembly of State Parties (ASP) convened for a first ses-
sion in September 2002 and formally adopted the Rules of Procedure and
Evidence and the Elements of Crimes.230 Judges were elected to the Court in
February 2003, and the Prosecutor was appointed in April 2003. The Prosecutor
opened the first investigation in June 2004,231 the first accused was arrested and
surrendered on 17 March 2006232 and the ICC commenced its judicial activities
shortly thereafter.233 As at July 2011, there were 116 states parties to the Rome
Statute, representing all regions of the world.234

ii. Jurisdiction

The final version of the Rome Statute reflects several important compromises
reached at the Rome Conference. Most importantly, the jurisdiction of the ICC is

the vote to be recorded.

225
Rome Statute, art 125.
226
However, the successor Bush administration did not favour participating in the treaty and pur-
ported to ‘unsign’ the Rome Statute on 6 May 2002. The communication from the United States gov-
ernment to the Secretary-General of the United Nations indicates that the United States no longer
intended to become a party to the Rome Statute. Israel lodged a similar declaration later that year.
227
Rome Statute, art 126.
228
Rome Statute, art 126.
229
Rome Statute, art 11.
230
See Assembly of State Parties to the Rome Statute of the International Criminal Court, Official
Records, First Session (New York 3–10 September 2002) ICC-ASP/1/3.
231
The first investigation concerned grave crimes allegedly committed on the territory of the
Democratic Republic of Congo since 1 July 2002: Statement of the OTP, ‘The Office of the Prosecutor
of the International Criminal Court Opens its First Investigation’ (23 June 2004).
232
Mr Thomas Lubanga Dyilo, a Congolese national and alleged founder and leader of the Union
des Patriotes Congolais (UPC), was arrested and transferred to the ICC on 17 March 2006. Pre-Trial
Chamber I had issued a sealed warrant of arrest against Mr Lubanga on 10 February 2006 and also
requested that the Democratic Republic of the Congo arrest and surrender him to the Court.
233
On 20 March 2006, Pre-Trial Chamber I held an initial public hearing to verify the identity of
Thomas Lubanga Dyilo.
234
Information obtained from the ICC website. For further details, see www.icc-cpi.int/Menus/
ASP/states+parties/.

restricted in several ways, thus ‘preserving the jurisdictional primacy of sovereign

states’.235 First, as noted above, the ICC may only exercise prospective jurisdiction,
that is it may only exercise jurisdiction in respect of situations occurring after
1 July 2002.236 Second, the ICC may only exercise jurisdiction where the alleged
criminal conduct occurred on the territory of a state party or the accused is a
national of a state party.237 This requirement does not apply where the state con-
cerned accepts the jurisdiction of the ICC by lodging a declaration to that effect,238
or where the Security Council, acting under Chapter VII of the United Nations
Charter, refers a situation to the ICC. Third, the ICC is bound by the principle of
complementarity, which stipulates that the ICC may only exercise jurisdiction
where the territorial state is not currently investigating or prosecuting the case or
is unwilling or genuinely unable to do so. This principle is discussed in more
detail below. Fourth, the jurisdiction of the ICC is restricted to persons over 18
years of age239 accused of committing the most serious crimes of international
concern, that is, it is not intended that the ICC will deal with lower level offenders
or less serious crimes.240 Fifth, the ICC has limited material jurisdiction and cur-
rently has jurisdiction only in respect of war crimes, crimes against humanity and
genocide.241 The Court may in future be able to exercise jurisdiction in respect of
the crime of aggression following the adoption of a definition of the crime of
aggression by the first Review Conference of the Rome Statute in June 2010.242
Finally, the Council, acting pursuant to its powers under Chapter VII, may delay
or preclude the commencement of an investigation or prosecution by sending a

235
M Newton, The Complementary Conundrum: Are We Watching Evolution or Evisceration?’
(2010) 8 Santa Clara Journal of International Law 115, 127.
236
Rome Statute, art 11. Where a state becomes a party to the Rome Statute after it has entered into
force, the ICC only has jurisdiction with respect to crimes committed after the entry into force of the
Statute for that state.
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

237
Rome Statute, art 12(2). The ICC would also have jurisdiction if the crime was committed on
board a vessel or aircraft and the state of registration of that vessel or aircraft is a party.
238
Rome Statute, art 12(3).
239
Rome Statute, art 26.
240
Art 1 provides that the ICC will only exercise jurisdiction ‘over persons for the most serious
crimes of international concern’. Art 17(1)(d) provides that the ICC must find a case inadmissible
where it is not of sufficient gravity to justify further action by the ICC. For further discussion, see
R Murphy, ‘Gravity Issues and the International Criminal Court’ (2006) 17 Criminal Law Forum 281
and M El Zeidy, ‘The Gravity Threshold Under the Statute of the International Criminal Court’ (2007)
19 Criminal Law Forum 35.
241
Rome Statute, arts 5–8.
242
‘Resolution RC/Res.6’ (adopted 11 June 2010) Review Conference of the Rome Statute (Kampala
31 May–11 June 2010. The agreed definition will be inserted as Art 8bis of the Rome Statute. However,
even following the adoption of a definition, which was reached as a result of much compromise at the
review conference, the ICC will not be able to exercise jurisdiction in respect of the crime of aggression
for several years. Moreover, states will be able to opt out of the Court’s jurisdiction with respect to the
crime of aggression, and there are important limits as to when jurisdiction may be exercised. For further
discussion, see C Wenaweser, ‘Reaching the Kampala Compromise on Aggression: The Chair’s Perspective’
(2010) 23 Leiden Journal of International Law 883; N Blokker and C Kress, ‘A Consensus Agreement on
the Crime of Aggression: Impressions from Kampala’ (2010) 23 Leiden Journal of International Law 889;
and C Stahn, ‘The “End”, the “Beginning of the End” or the “End of the Beginning”? Introducing Debates
and Voices on the Definition of “Aggression” ’ (2010) 23 Leiden Journal of International Law 875.

request to that effect to the ICC. The request for delay is to be for a renewable
12-month period.243
A related restriction on the exercise of jurisdiction by the ICC is the limited
number of mechanisms for ‘triggering’ the Court’s jurisdiction. There are three
‘triggering mechanisms’: referral of a situation to the Court by a state party;244 the
exercise of the Prosecutor’s proprio motu powers to commence an investigation;245
and the referral of a situation to the Court by the Security Council using its pow-
ers for international peace and security under Chapter VII of the UN Charter.246
As at July 2011, the Court had exercised its jurisdiction in respect of six situations.
Three situations have been referred by state parties to the Rome Statute, namely
the situations in northern Uganda,247 the Democratic Republic of the Congo248
and the Central African Republic.249 The practice whereby states ‘self-refer’ situa-
tions within their own territory to the ICC was not considered likely when the
Rome Statute was adopted. In fact, consensus at the time was that those states that
had armed conflicts within their territory or other situations that may attract the
jurisdiction of the ICC would refrain from becoming state parties to the Rome
Statute. Instead, the Prosecutor has adopted a policy of encouraging voluntary
referrals and states have been willing to refer situations to the ICC.
The Security Council has referred two situations to the Court: the situation in
Darfur, Sudan in 2005;250 and the situation in Libya in 2011.251 The Prosecutor has

243
Rome Statute, art 16. A request has been made on one occasion concerning jurisdiction regard-
ing peacekeeping forces of non-party states. Art 16 has more recently been suggested as a response to
the ICC Prosecutor’s request for an arrest warrant in respect of President Bashir of Sudan: see R Cryer,
‘The Security Council, Article 16 and Darfur’ (29 October 2008) Oxford Transitional Justice Research
Working Paper Series and A Ciampi, ‘The Proceedings against President Al Bashir and the Prospects of
their Suspension under Article 16 ICC Statute’ (2008) 6 Journal of International Criminal Justice 885.
244
Rome Statute, arts 13(a) and 14.
245
Rome Statute, arts 13(c) and 15.
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

246
Rome Statute, art 13(b).
247
Referred by Uganda in December 2003, see Statement of the OTP, ‘President of Uganda Refers
Situation Concerning the Lord’s Resistance Army (LRA) to the ICC’ (29 January 2004).
248
Referred by the Democratic Republic of Congo on 19 April 2004, see Statement of the OTP,
‘Prosecutor Receives Referral of the Situation in the Democratic Republic of Congo’ (19 April 2004).
249
Referred by the Central African Republic on 7 January 2005, see Statement of the OTP,
‘Prosecutor Receives Referral Concerning Central African Republic’ (7 January 2005).
250
UNSC Resolution 1593 (2005). For discussion of this referral, see R Cryer, ‘Sudan, Resolution 1593
and International Criminal Justice’ (2006) 19 Leiden Journal of International Law 195 and M Happold,
‘Darfur, the Security Council, and the International Criminal Court’ (2006) 55 International and
Comparative Law Quarterly 226. Indictments have been issued against six accused. Three accused remain
at large (including President Al-Bashir of Sudan on charges of genocide, crimes against humanity and
war crimes), charges against one accused were not confirmed, and the two remaining accused appeared
voluntarily in June 2010. Sudan is not a party to the Rome Statute.
251
UNSC Res 1790 (2011) UN Doc S/RES/1790. On 3 March 2011, the Prosecutor announced his
intention to open an investigation into crimes alleged to have been committed in Libya, see Statement
of the OTP, ‘ICC Prosecutor to Open an Investigation in Libya’ (3 March 2011). Pre-Trial Chamber I
issued arrest warrants in respect of three individuals, including the de facto head of state of Libya,
Muammar Mohammed Abu Minyar Gaddafi, on 27 June 2011, on charges of murder and persecution
as crimes against humanity: Situation in the Libyan Arab Jamahiriya, Decision on the Prosecutor’s
Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam
Gaddafi and Abdullah Al-Senussi, 27 June 2011.

to date exercised his power to commence an investigation proprio motu in respect

of one situation, the situation of Kenya following electoral violence in that coun-
try in 2008.252 The Kenyan government unsuccessfully challenged the jurisdiction
of the Court under article 19 of the Rome Statute on the basis of the complemen-
tarity principle.253 The Office of the Prosecutor (OTP) is actively monitoring the
situations in Afghanistan,254 Colombia,255 Côte d’Ivoire,256 Georgia,257 Guinea,258
Honduras,259 Nigeria,260 North Korea261 and Palestine.262 The Prosecutor has so far
declined to open an investigation in two situations: Iraq263 and Venezuela.264

252
Pre-Trial Chamber II authorised the Prosecutor to open an investigation into the situation in
Kenya on 31 March 2010: Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the
Rome Statute on the Authorisation of the Opening of an Investigation into the Situation in the
Republic of Kenya, 31 March 2010. On 8 March 2011, the Pre-Trial Chamber granted the Prosecutor’s
request to issue a summons requiring six suspects to appear before the Court on charges of crimes
against humanity. Those suspects appeared voluntarily in April 2011. See also the request for an inves-
tigation in respect of Côte d’Ivoire, n 256.
253
Situation in the Republic of Kenya, Application on Behalf of the Government of the Republic of
Kenya Pursuant to Article 19 of the ICC Statute, 31 March 2011. The Pre-Trial Chamber rejected the
admissibility challenge: Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang
(Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case
Pursuant to Article 19(2)(b) of the Statute) ICC-01/09-01/11, P T Ch, (30 May 2011). However, an
appeal by the Government of Kenya is pending. For further discussion, see ch 3, section III(E).
254
The preliminary investigation was made public in 2007.
255
The preliminary investigation was made public in 2006.
256
On 1 October 2003, the Government of Côte d’Ivoire submitted a declaration accepting the
jurisdiction of the Court as of 19 September 2002. On 23 June 2011, the Prosecutor submitted a
request under art 15: Situation in the Republic of Côte D’Ivoire, Request for authorisation of an investiga-
tion pursuant to art 15. If the investigation is authorised, it will be the first occasion on which an inves-
tigation has been opened concerning a state that is not a party to the Rome Statute, but has accepted
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

the jurisdiction of the Court.

257
Statement of the OTP, ‘ICC Prosecutor Confirms Situation in Georgia Under Analysis’ (20 August
2008).
258
Statement by ICC Deputy Prosecutor, ‘ICC Deputy Prosecutor: We are Keeping an Eye on Events
in Guinea’ (19 November 2010)
259
OTP, Weekly Briefing (16–22 November 2010).
260
ibid.
261
The investigation concerns crimes alleged to have been committed by North Korean forces in the
territory of the Republic of Korea (which is a state party to the Rome Statute). See Statement of the
OTP, ‘ICC Prosecutor: Alleged War Crimes in the Territory of the Republic of Korea Under Preliminary
Investigation’ (6 December 2010).
262
On 22 January 2009, the Palestinian National Authority lodged a declaration with the Registrar
under art 12(3) of the Rome Statute which allows states not party to the Statute to accept the Court’s
jurisdiction. The OTP is currently considering whether the declaration meets the requirements set by
the Rome Statute for an acceptance of jurisdiction by a state.
263
OTP response to communications received regarding Iraq: OTP, ‘Letters to Senders re Iraq
9 February 2006’ (9 February 2006). The prosecutor found that, while there was evidence to suggest
that war crimes had been committed by British troops in Iraq, the crimes were not of sufficient gravity
to warrant the exercise of jurisdiction by the ICC.
264
See OTP response to communications received concerning Venezuela: OTP, ‘Letters to Senders re
Venezuala 9 February 2006’ (9 February 2006). The Prosecutor did not find a reasonable basis to
believe that crimes against humanity had been committed.

iii. ‘Complementary’ Justice: The System of International Criminal Justice

as Contemplated by the Rome Statute

When the Rome Statute was negotiated, it was clear that the model of primacy
adopted for the ICTY and ICTR was not a realistic option for a permanent inter-
national criminal court.265 States were prepared to tolerate interference with their
sovereignty for the purposes of an ad hoc, temporary court established by the
Security Council as part of its mandate for maintaining international peace and
security. However, they were not prepared to do so on a permanent basis, for sig-
nificant crimes, in particular the crime of aggression, and for a court to be estab-
lished by a treaty rather than by a Security Council resolution.266 Moreover, in
most situations the Security Council would not be involved in consenting to or
initiating the exercise of jurisdiction by the ICC.267 States were also particularly
concerned regarding the independent power of the Prosecutor to initiate investi-
gations.268 The limited resources to be allocated to the ICC raised the risk that
more than a few, highly significant, cases would overwhelm the capacity of the
ICC. This required the recognition that the ICC could not be considered a replace-
ment for national jurisdiction and, at best, could expect to try only a few cases in
a limited number of situations. Practical considerations also dictated that national
courts should have a considerable role in relation to a permanent court, as the
affected state is often in a better position to access evidence and using the existing
legal framework at the domestic level, which is established and familiar to the
participants, is more efficient.269 Consequently, the negotiators of the Rome
Statute searched for a different relationship than primacy to apply as between the
ICC and national jurisdictions.270
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265
Brown, n 162.
266
Brown, ibid; Holmes, ‘The Principle of Complementarity’, n 170.
267
Earlier proposals had provided a greater role for the Security Council in the Court’s exercise of
jurisdiction. eg, the International Law Commission draft statute for a permanent international crimi-
nal court provided that only states parties and the Security Council could refer cases to the ICC and,
where the situation had not been referred by the Council, the Court could only exercise jurisdiction
where both the state with custody and the territorial state had accepted the Court’s jurisdiction:
International Law Commission, ‘Report of the International Law Commission on the Work of its
Forty-Sixth Session’ (1994) UN Doc A/49/10. See also J Crawford, ‘The Making of the Rome Statute’ in
P Sands (ed), From Nuremberg to the Hague: The Future of International Criminal Justice (Cambridge,
Cambridge University Press, 2003).
268
C Stahn, ‘Complementarity: A Tale of Two Notions’ (2008) 19 Criminal Law Forum 87, 96;
M Bergsmo, ‘Occasional Remarks on Certain State Concerns about the Jurisdictional Reach of the
International Criminal Court, and Their Possible Implications for the Relationship between the Court
and the Security Council’ (2000) Nordic Journal of International Law 69. See also P Kirsch and
D Robinson, ‘Initiating of Proceedings by the Prosecutor’ in A Cassese, A Eser, G Gaja, P Kirsch,
A Pellet and B Swart (eds), The Rome Statute of the International Criminal Court: A Commentary
(2002) vol I, 660.
269
The advantages offered by trials before national courts were discussed during negotiations for
the Rome Statute: ‘Report of the Ad Hoc Committee on the Establishment of an International Criminal
Court’, GAOR 50th Session, Supplement No 22 (1995) UN Doc A/50/22, para 31.
270
For discussion see Holmes, n 170, 41.

States settled instead on the principle of complementarity; that is, the notion
that international proceedings should complement, but not replace, national pro-
ceedings.271 Complementarity requires that national courts will bear the primary
responsibility for enforcement of international criminal law. Accordingly, the
ICC is to function as a court of last resort, where accountability cannot be secured
at the national level.272 As the Prosecutor has stated: 273
The effectiveness of the International Criminal Court should not be measured by the
number of cases that reach it. On the contrary, complementarity implies that the
absence of trials before this Court, as the consequence of the regular functioning of
national institutions would be a major success.

In delineating the jurisdiction of the ICC from that of states, in particular

national courts, the principle of complementarity is perhaps the key feature of the
Rome Statute.274 The principle was described by several states during the negotia-
tion process ‘as an essential element in the establishment of an international crim-
inal court’.275
The principle of complementarity is reflected in the preamble to the Rome
Statute, which recalls that ‘it is the duty of every state to exercise its criminal
jurisdiction over those responsible for international crimes’, and also in article 1,
which provides that the ICC ‘shall be complementary to national criminal juris-
dictions’. Complementarity is considered as an issue of admissibility under article
17 of the Rome Statute, rather than as a question of jurisdiction.276 Thus, even
though the Court may otherwise have jurisdiction in a particular situation, the
Court will be unable to exercise that jurisdiction other than in certain circum-
stances.277 Article 17 of the Rome Statute retains a role for the ICC where: (1) the
state has not taken action;278 (2) the case has been investigated or prosecuted by a
271
The notion of complementarity featured in the International Law Commission draft statute for
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

a permanent international criminal court, but the definition and scope of the principle was substan-
tially developed during negotiations. For discussion of the development of the principle of comple-
mentarity, see: M El Zeidy, The Principle of Complementarity in International Criminal Law: Origin,
Development and Practice (Leiden, Martinus Nijhoff Publishers, 2008).
272
M Benzing, ‘The Complementarity Regime of the International Criminal Court: International
Criminal Justice between State Sovereignty and the Fight against Impunity’ (2003) 7 Max Planck Yearbook
of United Nations Law 591, 599.
273
L Moreno Ocampo, Statement Made at the Ceremony for the Solemn Undertaking of the Chief
Prosecutor of the ICC (16 June 2003).
274
Bergsmo, n 268, 87.
275
Report of the Ad Hoc Committee on the Establishment of an International Criminal Court,
GAOR 50th Session, Supplement No 2 (1995) UN Doc A/50/22, para 29.
276
Schabas, An Introduction to the International Criminal Court, n 218, 187–89 for a discussion of
the difference between jurisdiction and admissibility in the Rome Statute.
277
Benzing, n 272, 594.
278
That the ICC may exercise its jurisdiction where the state concerned has taken no steps to exer-
cise its jurisdiction is not stated expressly in art 17 of the Rome Statute. However, to preclude the
exercise of jurisdiction by the ICC in such circumstances does not make sense and would be contrary
to the purpose of the Rome Statute, which is to end impunity. That the ICC may exercise jurisdiction
in the face of inactivity has been confirmed by the Court. eg, in Lubanga, Pre-Trial Chamber I said ‘The
first part of the test relates to national investigations, prosecutions and trials concerning the case at
hand insofar as such case would be inadmissible only if those States with jurisdiction over it have

state, but the state is ‘unwilling or unable genuinely to carry out the investigation
or prosecution’;279 or (3) the case has been investigated by a state and a decision
not to prosecute the accused has been made, but that decision ‘resulted from the
unwillingness or inability of the State genuinely to prosecute’.280
The drafters of the Rome Statute provided limited guidance as to when a state
may be considered ‘unwilling or unable’. In determining inability in a particular
case, the Court is required to consider whether, ‘due to a total or substantial col-
lapse or unavailability of its national judicial system, the State is unable to obtain
the accused or the necessary evidence and testimony or otherwise unable to carry
out its proceedings’.281 A state will be considered unwilling where: the proceedings
or decision not to prosecute were taken with the purpose of shielding the indi-
vidual; there has been an unjustified delay in bringing the proceedings, which is
inconsistent with an intent to bring the person concerned to justice; and/or the
proceedings were not or are not being conducted independently or impartially,
and they were or are being conducted in a manner which, in the circumstances, is
inconsistent with an intent to bring the person concerned to justice.282 Therefore,
the circumstances in which the ICC may need to intervene reflect many of the
problems with trials before domestic courts already identified,283 in particular:
inability due to the collapse of the judicial system; unwillingness, due to a lack of
political will where the perpetrators, or those closely connected to the perpetra-
tors, are still in power or due to a desire to avoid potential repercussions for
national reconciliation; or where national laws preclude prosecution.
Complementarity – as well as the requirement that the crimes be of a sufficient
gravity284 – thus functions ‘as a bar to the Court’s consideration of a case’285 and
is inherently linked to questions concerning the exercise of jurisdiction.
Complementarity aims to balance the competing interests at stake in international
criminal justice, by preserving the sovereignty of the state to prosecute criminal
activity, but also by setting the outer parameters for the exercise of that authority.
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

Where a state does not exercise its primary function to investigate and prosecute
offenders, then the ICC can step in, thus preserving the interest of the international
community in ending impunity for those accused of committing international
crimes. It envisages a system of international criminal justice comprising national
courts as the primary tool to avoid impunity, supported by trials at the international
level where national trials have not occurred or have not been conducted in good
remained inactive in relation to that case or are unwilling or unable . . .’: Prosecutor v Lubanga (Decision
on the Prosecutor’s Application for a Warrant of Arrest, Article 58) ICC-01/04-01/06, P T Ch I (10
February 2006) para 29, emphasis added. Thus, where no state has taken any action, the Court does
not need to assess whether the state is unwilling or unable. See also W Schabas, The International
Criminal Court: A Commentary on the Rome Statute (Oxford, Oxford University Press, 2010) 340–44.
279
Rome Statute, art 17(1)(a).
280
Rome Statute, art 17(1)(b).
281
Rome Statute, art 17(3).
282
Rome Statute, art 17(2).
283
See this ch 1, section II(C).
284
Rome Statute, art 17(1)(d).
285
Holmes, ‘The Principle of Complementarity’, n 170, 61.

faith. Complementarity places the ICC in a limited supervisory role, in relation to

‘irresponsible states that refuse to prosecute nationals who commit heinous inter
national crimes’ but balances that power ‘against the sovereign right of states to
prosecute their own nationals without external interference’.286
The principle also raises the issue as to the relationship between the ICC and
the courts of third states acting on the basis of universal jurisdiction.287 Article 17
of the Rome Statute refers to ‘a State’, which is not necessarily the territorial state.
Consequently, it is possible that a third state exercising universal jurisdiction in
respect of an international crime may render a case inadmissible before the ICC.
While this issue has yet to arise, it is certainly arguable that, given the concerns
surrounding the exercise of universal jurisdiction, this basis of jurisdiction should
perhaps be the ‘ultimate’ last resort. That is, a state should not seek to exercise
jurisdiction on this basis unless states with a preferable link to the crime, or the
ICC, are not willing or able to exercise jurisdiction.288
Complementarity has already achieved positive results. First, in order to ensure
that national authorities can satisfy the requirements of complementarity by con-
ducting prosecutions at the national level, many states have introduced new legis-
lation or updated existing legislation criminalising the international crimes within
the jurisdiction of the ICC.289 This has strengthened the capacity of states to try
core crimes, thus reinforcing and enabling the primary responsibility of states for
enforcing international criminal law. The desire to avoid intervention by the ICC
in a situation has also provided an incentive for states to implement treaty obliga-
tions fully and to improve national justice systems so as to comply with inter
national minimal standards.290 This is perhaps most clearly demonstrated by the
reforms introduced by the government of Kenya in an attempt to render two
cases arising from the post-election violence in Kenya inadmissible.291
Another – albeit largely unanticipated – development has been the emergence
of an approach to complementarity that emphasises cooperation between the
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

ICC and national jurisdictions. This approach, often referred to by terms such as
‘positive complementarity’,292 and ‘co-operative complementarity’,293 has been
Newton, n 235, 121.
286

See this ch 1, section II(D).

287

See Kleffner, n 28, 106–09; Ryngaert, ‘Applying the Rome Statute’s Complementarity Principle:
288

Drawing Lessons from the Prosecution of Core Crimes by States Acting Under the Universality
Principle’ n 94.
289
See Kleffner, ibid.
290
W Burke-White, ‘Complementarity in Practice: The International Criminal Court as Part of a
System of Multi-level Global Governance in the Democratic Republic of Congo’ (2005) 18 Leiden
Journal of International Law 557; Bekou and Shah, n 43.
291
See ch 3, section III(E).
292
The OTP refers to a ‘positive approach to complementarity, meaning that it encourages genuine
national proceedings where possible’: OTP, Report on Prosecutorial Strategy, 14 September 2006, 5
(emphasis in original). In its most recent strategy document, the OTP refers to ‘positive complementa-
rity’, which it defines as ‘a proactive policy of cooperation aimed at promoting national proceedings’:
OTP Prosecutorial Strategy 2009–12, 1 February 2010, 4–5.
293
M Cross and S Williams, ‘Recent Developments at the ICC: Prosecutor v Germain Katanga and
Mathieu Ngudjolo Chui – A Boost for “Co-operative Complementarity”?’ (2010) 10 Human Rights Law
Review 336.

developed by the ICC Prosecutor.294 The strategy of the OTP is ‘to encourage
and facilitate states to carry out their primary responsibility of investigating and
prosecuting crimes’.295 This approach to complementarity reflects the view
that national courts and the ICC are in a partnership for achieving international
criminal justice, and that the state concerned and the ICC can make a decision,
jointly, as to the allocation of responsibility for prosecution and arrangements for
‘burden-sharing’.296 One aspect of this approach has been the Prosecutor’s
encouragement of self-referral of situations by states to the ICC,297 which has
raised the issue of whether the territorial state can ‘waive’ its primary right to try
individuals, preserved by complementarity, in favour of proceedings before the
ICC.298 The Appeals Chamber of the ICC has held that it is consistent with both
the obligation of a state to prosecute international crimes and the principle of
complementarity for a state to take ‘the sovereign decision to relinquish its juris-
diction in favour of the Court’, either by deciding not to take any steps itself, or by
terminating existing proceedings so as to surrender the accused to the ICC.299 For
the Appeals Chamber, ‘the complementarity principle, as enshrined in the Statute,
strikes a balance between safeguarding the primacy of domestic proceedings vis-
à-vis the International Criminal Court on the one hand, and the goal of the Rome
Statute to “put an end to impunity” on the other hand’.300 A second aspect has
been the development of so-called ‘reverse cooperation’, the provision of coop-
eration by the ICC to states in conducting national trials for international
crimes.301

294
The strategy is based in an expert paper prepared for the OTP in 2003: Paper on Some Policy
Issues before the Office of the Prosecutor, September 2003 (available at www.icc-cpi.int/NR/
rdonlyres/1FA7C4C6-DE5F-42B7-8B25-60AA962ED8B6/143594/030905_Policy_Paper.pdf).
295
ibid, 5.
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

296
The OTP strategy states that ‘the Court and a territorial State incapacitated by mass crimes may
agree that a consensual division of labour is the most logical and effective approach’: ibid, 5.
297
See also this ch 1, section III(B)(iv)(b).
298
See, eg, Benzing, n 272, 629–31; W Burke-White and S Kaplan, ‘Shaping the Contours of Domestic
Justice: The International Criminal Court and an Admissibility Challenge in the Uganda Situation’
(2009) 7 Journal of International Criminal Justice 257; and C Kress, ‘“Self-Referrals” and “Waivers” of
Complementarity: Some Considerations in Law and Policy’ (2004) 2 Journal of International Criminal
Justice 944. For criticism of this development, particularly in the context of self-referrals by states, see
W Schabas, ‘Complementarity in Practice: Some Uncomplimentary Thoughts’ (2007) 19 Criminal Law
Forum 5; and G Bitti and M El Zeidy, ‘The Katanga trial Chamber Decision: Selected Issues’ 2010 23
Leiden Journal of International Law 319 (arguing that an agreement between the Prosecutor and the state
restricts the ability of the accused to challenge admissibility).
299
Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Judgment on the Appeal of Germain
Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the
Case) ICC-01/04-01/07 OA 8, A Ch (25 September 2009) para 85. For discussion see Cross and
Williams, n 293.
300
Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Judgment on the Appeal of Germain
Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the
Case) para 85.
301
F Gioia, ‘State Sovereignty, Jurisdiction, and “Modern” International Law: The Principle of
Complementarity in the International Criminal Court’ (2006) 19 Leiden Journal of International Law
1095.

iv. Conclusion

During the negotiation of the Rome Statute and in the early phases of the ICC,
‘ICC jurisdiction and domestic jurisdiction were largely viewed as competing, or
diametrically opposed, concepts’.302 The Rome Statute itself reflects a carefully
constructed balance between the twin aims of preserving state sovereignty and
ensuring accountability for international crimes, as shown in the provisions on
the exercise of jurisdiction and admissibility, in particular the principle of
complementarity. However, recent years have seen a shift in focus from the ICC
as an alternative mechanism to national courts, or a ‘substitution model’,303
towards an appreciation of the ICC as part of a comprehensive system of inter
national criminal justice. This view advocates that the Rome Statute does more
than merely delineate jurisdiction. Instead ‘the Statute may be said to create a
system of judicial enforcement for the prosecution of the most serious inter
national crimes at both the domestic and international levels . . . complementarity
regulates the allocation of authority between States and the international court
and recognises the shared competence and, perhaps even common duty, of
national and international institutions to help bring about an end to impunity’.304
Complementarity therefore reflects a broader system ‘under which the Court and
domestic jurisdictions are meant to reinforce each other in their mutual efforts to
institutionalise accountability for mass crimes’.305 It has thus moved beyond the
‘threat’ used to procure prosecution by states, to an approach that considers the
best circumstances for effective prosecution.

This chapter has considered the emerging system of international criminal justice.
It has demonstrated that international criminal law has been shaped by two pri-
mary interests: the preservation of state sovereignty, reflected in national trials for
international crimes on the one hand, and the interest of the international com-
munity in ending impunity for violations of international criminal law, reflected
in trials before international institutions and before the courts of third states on
the other. The present system is one of relatively recent origin, and the appro
priate balance between these two interests is still being developed. The existing
system is largely decentralised, with states remaining the primary actors in

302
C Stahn, ‘Perspectives on Katanga: An Introduction’ (2010) 23 Leiden Journal of International
Law 311, 311.
303
W Burke-White, ‘Complementarity in Practice: The International Criminal Court as Part of a
System of Multi-level Global Governance in the Democratic Republic of Congo’ n 290, 558.
304
W Burke-White, ‘Implementing a Policy of Positive Complementarity in the Rome System of
Justice’ (2008) 19 Criminal Law Forum 59, 65.
305
C Stahn, ‘Complementarity: A Tale of Two Notions’, n 268, 91.

securing accountability for violations of international criminal law. Other than in

limited circumstances, states are not subject to an obligation to exercise criminal
jurisdiction in respect of international crimes and there is no supervisory mechan
ism by which states may be compelled to do so. Similarly, there is no formal
hierarchy or ‘conflict rules’ determining which state should exercise jurisdiction
where there are equally valid but competing jurisdictional claims. Instead, coop-
eration and interaction between states and between states and international insti-
tutions is largely governed by formal arrangements and informal exchanges. State
sovereignty continues to dominate, as reaffirmed by the complementarity regime
governing the ICC, the process of referral of cases to national jurisdictions
adopted by the ad hoc tribunals, the newly established residual Mechanism, and
the emerging principle of subsidiarity in the context of universal jurisdiction.
The approach initially adopted in circumstances where concurrent national
and international jurisdiction for international crimes existed was to view the
relationship between such jurisdictions as a competitive one, with the interests of
the international community always favouring international prosecutions. This
was evidenced particularly in the creation of the ICTY and the ICTR, which could
require the deferral of national proceedings, and also in the notion of the ICC as
the safeguard of the international interest, by stepping in to secure accountability
where states failed to do so. However, this approach is changing. The ICTY and
the ICTR have adopted a more cooperative approach to national jurisdictions,
required by the imposition of the completion strategy and the need to refer cases
to national courts. Similarly, the ICC has shifted to a more nuanced approach,
reflected in notions of burden sharing and positive complementarity. As com-
mentators have noted:306
[T]he choices and policies of the Court on complementarity are of considerable impor-
tance for the future of international criminal justice, since they shape the very essence of
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

the relationship of the Court to domestic jurisdictions as well as the interaction of states
in the exercise of criminal jurisdiction.

The limits of trials before international tribunals are now recognised, as are the
benefits that arise from national prosecution that cannot be realised in inter
national proceedings. There is also increased resistance to the exercise of universal
jurisdiction by third states, largely due to the risks of abuse of this basis of
jurisdiction, and its implications for state sovereignty. The focus is now for mech-
anisms that better reflect the balance between national processes and respect for
state sovereignty, and the need to secure accountability for international crimes.
The discussion has also revealed that the current system of international crimi-
nal justice is not comprehensive. It comprises three main elements: prosecutions
by the courts of the territorial state; trial before international institutions, either
by tribunals established on an ad hoc basis or by the ICC; and trials before the
national courts of third states. There are potentially significant limits to national
306
W Schabas, C Stahn and M El Zeidy, ‘The International Criminal Court and Complementarity:
Five Years On’ (2008) 19 Criminal Law Forum 1, 1.

trials, including a lack of political will, insufficient expertise and resources, and
legal barriers at the domestic level. The existing ad hoc tribunals established by
the Security Council are highly selective and may exercise jurisdiction in respect
of the former Yugoslavia and Rwanda only. It is also unlikely that the Security
Council will establish further ad hoc tribunals, given their expense and the possi-
bility of referring situations to the ICC. The jurisdiction of the ICC is itself
restricted, by limits in the Rome Statute on its temporal, geographical and sub-
stantive jurisdiction, and its jurisdiction may only by triggered by certain mechan
isms. Moreover, the ICC must operate in accordance with the principle of
complementarity and may only exercise jurisdiction in relation to cases of a suf-
ficient gravity. The exercise of universal jurisdiction by third states is subject to
controversy, and the principle is arguably being restricted so as to operate as a
subsidiary mechanism.
In an ideal world, the three ‘pillars’ of international criminal justice – national
courts of the territorial state, the ICC and possibly third states exercising universal
jurisdiction – would ensure accountability for all violations of international
criminal law. However, given the limits on the availability of these mechanisms
there will continue to be impunity gaps. These gaps will most likely exist where:
(1) national courts in the affected state cannot or do not act; (2) the ICC does not
possess jurisdiction in respect of a particular situation, the crimes are not of suf-
ficient gravity to permit the ICC to intervene, or the ICC lacks the resources to try
the case; (3) the Security Council does not or cannot establish an ad hoc tribunal,
as the required link to international peace and security is not present, the threat
that a permanent member would veto the action, or the absence of support for a
tribunal on the Council; and (4) third states do not or cannot exercise universal
jurisdiction, either due to shortcomings in national law or a lack of political will
to do so. The limits to the current system have led to the development of a further
mechanism for achieving international criminal justice and addressing this impu-
Copyright © 2012. Bloomsbury Publishing Plc. All rights reserved.

nity gap; the so-called hybrid or internationalised criminal tribunal. These tribu-
nals are addressed in the following chapters.

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The Emerging System of International Criminal Justice

Uploaded by

The Emerging System of International Criminal Justice

Uploaded by

1

The Emerging System of

II. Prosecution of International Crimes before

A. National Jurisdiction for International Crimes

cised based on principles of jurisdiction recognised in public international law.6

The most important principle is that of territorial jurisdiction, whereby a state

B. Is There an Obligation to Exercise Domestic Criminal

Where a state has exercised its prescriptive jurisdiction so as to criminalise certain

to exercise criminal jurisdiction) or to extradite a suspect to a state that is willing

recognises the primary responsibility of states to exercise national jurisdiction in

In any event, even if it was possible to establish a duty to prosecute, either as a

Contracting States (Admissibility Decision) Application No 52207/99, European Court of Human

C. Challenges of Domestic Prosecution

avoid investigation and prosecutions altogether. Alternatively there may be a per-

limitation, or simply an underdeveloped substantive law that does not criminalise

D. Prosecution before National Courts of Third States on the Basis

See ICCPR, art 15.

Netherlands,63 Spain64 and the United Kingdom.65

Kingdom based on universal jurisdiction, that of Afghan militia leader Faryadi

Sovereignty and the Rule of Law, n 45, 412–16.

the final decision on initiating prosecutions to be made by the relevant prosecuting

political factors at play, it is doubtful that universal jurisdiction will prove to be

III. Trials of International Crimes before

A. The Post-War Period: The Nuremberg and Tokyo Tribunals

B. The Ad Hoc International Criminal Tribunals

i. Establishing the International Criminal Tribunal for the Former

UNSC Res 780 (1992) UN Doc S/RES/780, para 2.

Resolution 780’ (1992) UN Doc S/25274 (Interim Report) Annex 1.

options for the creation of an international tribunal.122 Based on the recommen-

ii Establishing the International Criminal Tribunal for Rwanda

preferably by amending the statute of the ICTY so as to include jurisdiction for

UNSC Res 935 (1994) UN Doc S/RES/935.

UNSC, ‘Preliminary Report of the Independent Commission of Experts Established in

Accordance with Security Council Resolution 935’ (1994) UN Doc S/1994/1125.

In November 1994 the Security Council established the International Criminal

iii. The Development of the Completion Strategy

iv. Relationship between the Ad Hoc Tribunals and National Jurisdictions

An essential element of achieving the completion strategy is the transfer of trials

problematic for other states contemplating extraditing individuals to face trial in

With the objective of referrals to Rwanda as part of the ICTR Completion

to the maximum extent possible in order to receive referred cases’.210

v. Conclusion: The Ad Hoc Tribunals and Their Contribution to

C. The International Criminal Court

international criminal court to the General Assembly in 1994.222

the vote to be recorded.

restricted in several ways, thus ‘preserving the jurisdictional primacy of sovereign

to date exercised his power to commence an investigation proprio motu in respect

the jurisdiction of the Court.

iii. ‘Complementary’ Justice: The System of International Criminal Justice

In delineating the jurisdiction of the ICC from that of states, in particular

faith. Complementarity places the ICC in a limited super­visory role, in relation to

See this ch 1, section II(D).

securing accountability for violations of international criminal law. Other than in

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faith. Complementarity places the ICC in a limited supervisory role, in relation to