Prosecuting International Crimes in Africa - PULP - University of ...

Positive complementarity and the fights against impunity in Africa 251
2 Complementarity principle and international
justice
2.1 Origin of the concept in the Rome Statute
The ICC operates on the principle of complementarity that makes it the
duty of every state to exercise its criminal jurisdiction over those
responsible for international crimes. 12 This is unlike the International
Criminal Tribunal for Yugoslavia (ICTY), 13 the International Criminal
Tribunal for Rwanda (ICTR) 14 and the Special Court for Sierra Leone
(SCSL), 15 which have primacy over national jurisdictions on the
prosecution of international crimes. The complementarity principle,
recognised as the hallmark of the Rome Statute, is not peculiar to the treaty
as its origin predates negotiations leading to the adoption of the Rome
Statute. 16 The ICC is expected to complement and not supplant the
prosecution of international crimes by national jurisdictions. 17
The principle of complementarity is based not only on respect for the
primary jurisdiction of states, but also on practical considerations of
efficiency and effectiveness, since states will generally have the best access
to evidence, witnesses, and resources to carry out proceedings. 18 Before
the adoption of the Rome Statute in 1998, some international treaties had
indirectly made reference to the principle of complementarity by
encouraging prosecution at the national level. These treaties include the
Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, 19 the International
Convention on the Suppression of the Punishment of the Crime of
12 Arts 1 and 17 Rome Statute; M Benzing ‘The complementarity regime of the
International Criminal Court: International criminal justice between states sovereignty
and the fight against impunity’ (2003) 7 Max Planck Yearbook of United Nations Law 591,
592.
13 UNSC Res 827 of 25 May 1993 establishing the International Criminal Tribunal for the
former Yugoslavia.
14 UNSC Res 955 of 8 November 1994 establishing the International Criminal Tribunal
for Rwanda.
15 UNSC Res 1315 of 14 August 2000 establishing the Special Court for Sierra Leone.
16 M El-Zeidy ‘The principle of complementarity: A new machinery to implement
international criminal law’ (2003) 23 Michigan Journal of International Law 869, 896.
17 M Newton ‘Comparative complementarity: Domestic jurisdiction consistent with the
Rome Statute of the International Criminal Court’ (2001) 167 Military Law Review 20,
26.
18 R Cryer et al An introduction to international criminal law and procedure (2007) 127.
19 Art 49 Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field, entered into force on 21 October 1950.