PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT DISCUSSES COMPLEMENTARITY BETWEEN NATIONAL, INTERNATIONAL JURISDICTIONS
Press Release
L/2771
PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT DISCUSSES COMPLEMENTARITY BETWEEN NATIONAL, INTERNATIONAL JURISDICTIONS
19960401 The proposed international criminal court should only exercise jurisdiction over criminal cases where national jurisdiction was either non- existent or ineffective, the Preparatory Committee on the Establishment of the Court was told this morning, as it began considering the question of complementarity between the court and national jurisdictions.By the principle of complementarity, neither the national nor the international criminal jurisdiction is meant to be subservient to the other. The principle is set out in the preamble of the proposed court's draft statute, which states that the court "is intended to be complementary to national criminal justice systems in cases which those systems cannot resolve".
In discussion of when the Court should operate, the representatives of France and Israel said the proposed court should operate when prosecution at the national level was not possible due to the non-existence or non- functioning of national jurisdictions. France urged that the statute of the court describe the means by which the court would note the absence of a verifiable national trial.
The representative of Morocco said that the court should allow primacy for national jurisdiction, but should the national jurisdiction be unable to play its proper role, then the court should step in. In order for the principle to retain full meaning and not be void of any real substance, there must be very clear criteria indicating when cases should be sent to the court. Confining the court's jurisdiction to the core crimes would make it easer to achieve that objective.
The representative of Austria said that the court's jurisdiction was needed if relevant states were unwilling to exercise their responsibility to prosecute. His country opposed the idea of States deciding on what cases should be brought before the court or being given the power to stop the court from prosecuting a particular case.
The proposed court should not become the regular court for exceptionally serious crimes, said the representative of France. Its competence should be exceptional, and its mandate narrow.
The representative of the United Kingdom said that the international court should respect national decisions to seek assistance, including extradition.
Discussing whether complementarity should be incorporated into the statute of the Court, France, Israel, Ireland, Czech Republic, Netherlands, China and United States called for the principle of complementarity to be mentioned in the operative articles of the statute itself. The representative of Germany also called for mention of complementarity in the body of the statute. He added that the statute should provide that challenges to the court's jurisdiction should only be made at the start of trials -- not afterward. The preamble should mention that determinations regarding complementarity should be made on a case-by-case basis.
The representative of Greece said that the principle of complementarity had been adequately established in the preamble, though it could be reiterated in an operative paragraph. The representative of Sweden emphasized that inclusion of the principle in the text should not be over-detailed.
The representative of Morocco said that the statute should set out the principle of complementarity very clearly and should reflect that principle in all its relevant provisions. The representative of India said that the preambular reference to the principle of complementarity was not enough. Rather, the principle should be spelt out in the statute. His Government favoured an international criminal court that did not conflict with the inherent criminal jurisdiction of sovereign States. Conferring inherent jurisdiction on the court would be in conflict with the existing state of affairs regarding international criminal jurisdictions.
When the Committee discussed defending national jurisdiction against international, several delegates urged that the international court not be allowed to impinge upon the prerogatives of national jurisdictions. The representative of China said that the international court should be prohibited from taking precedence over national jurisdictions. The statute should make clear under what circumstances on-site investigations could take place
The representatives of the United Kingdom and Switzerland said that the court should have no role unless national prosecution was inadequate. Both emphasized that the international court should not be able to re-prosecute crimes already prosecuted by national jurisdictions, unless the national prosecution was not in good faith.
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Switzerland added that in the statutes of the tribunals for the former Yugoslavia and for Rwanda it had been emphasized that the international jurisdiction was necessary because national prosecutions had been biased and had not diligently carried out proceedings. He suggested that the international court might also take action at the request of national courts and in cases of aggression.
The representative of Israel called for a re-drafting of the draft statute text which seemed to grant the international court the right to "supervise" the proceedings of national courts. The representative of Germany said that the drafters of the statute had not intended the international court to have any priority over national courts.
The representative of the Czech Republic urged that article 35 of the statute (which would allow the international court to decline a prosecution when it was satisfied that national courts had adequately exercised their jurisdiction) emphasize that proper national decisions should be respected by the international criminal court. If national courts had reached impartial and fair decisions, there was no reason to re-try crimes at the international level.
The representative of Italy said the statute should reflect the clear criteria on which the court would decide whether or not to deal with a particular matter. The court should not be reduced to a residual role. The statute should also include a clear definition of what is meant for a national jurisdiction to be unavailable or ineffective.
The representative of the United States proposed that as long as a national jurisdiction was investigating and prosecuting in good faith, there should be no role for the international criminal court with regards to a particular matter. It should be up to the court itself to determine that conditions were satisfied so as not to trigger its involvement. However, states should determine the scope of those conditions and should incorporate them in the statute.
The representative of Finland, however, called for a "balanced approach" to complementarity. Too much emphasis on the safeguarding of national jurisdictions would render the court useless. The international court should be able to decide for itself whether national courts had adequately dealt with prosecutions. The representative of Ireland said that in safeguarding the primacy of national jurisdictions, the international court should not be forced to "bow" to national courts.
The representative of the Netherlands said that the Preparatory Committee should "draw the line" between concurrent national and international jurisdictions as carefully as possible. But the benefit of doubt should go to the international criminal court. The risk of impinging upon the prerogatives of national jurisdictions was far outweighed by the risk that perpetrators
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might go free when protected by national authorities. Ultimately, the international court should decide when to pursue a case.
The representative of Greece said that the international court may have to take action when national courts were under serious constraints. It was difficult to imagine genocide being carried out without the participation of governments. No one could expect either an aggressor or the victim of aggression to adequately prosecute that crime.
The Preparatory Committee will meet again at 3 p.m. to continue its discussions on the question of complementarity between the proposed court and national jurisdictions.
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