Jann K Kleffner, COMPLEMENTARITY IN THE ROME STATUTE AND NATIONAL CRIMINAL JURISDICTIONS Oxford: University Press (www.oup.co.uk), 2008. xxvii + 385 pp. ISBN 9780199238453. £60.
| Pages | 351-353 |
| Author | James Sloan |
| Date | 01 May 2010 |
| Published date | 01 May 2010 |
| DOI | 10.3366/elr.2010.0023 |
A matter of fundamental importance for the drafters of the Rome Statute (1998) of the International Criminal Court (ICC) was striking the correct balance between the role of the ICC and that of “states parties” in the prosecution of crimes covered by the Statute: genocide, crimes against humanity, war crimes and, perhaps in the future, aggression (collectively, “ICC crimes”). When should the ICC itself prosecute an individual for violations of these crimes – thereby taking on a role which previously had been exercised (to the extent it was exercised at all) by sovereign states – and when should a prosecution be left to the states themselves? If the Rome Statute's rules for ICC involvement in a case had been too strict, the ICC would have been precluded from prosecuting a case even where the apposite national court was unwilling to do so – perhaps for reasons of corruption, political expedience or inability – thereby denuding the Court of much of its
The result was the principle of complementarity: the jurisdiction of the ICC is to be exercised in a way that does not usurp the pre-existing jurisdiction held by states but, rather, complements it. The Rome Statute envisages that the national state has primary competence to investigate and prosecute ICC crimes and forecloses the ICC from deciding a case (by deeming it inadmissible) where the matter is being (or has been) dealt with by the national state with jurisdiction – unless the state is (or was) unwilling or genuinely unable to investigate or prosecute a matter. As Kleffner observes, the principle of complementarity “reflects the intention that the international is designed to supply the deficiencies of the national. The ICC is envisaged as the mechanism through which any gaps left by the deficiencies of domestic suppression are filled, or at least significantly narrowed.” Thus, it is only in unusual circumstances that the ICC will become engaged in a prosecution. Indeed, it was the complementarity provisions that led the late Robin Cook (then UK Foreign Secretary) to advise the House of Commons that the UK had nothing to fear in signing the Rome Statute: “Members on both sides of the House should have a robust confidence that the...
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