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still just over the boundary. Moreover, because states that join the Statute
are obligated to align their domestic legal codes with the stipulations of the
Statute so that they can fully cooperate with the Court, the crime de¬nitions
in the Statute are relevant not only for their consolidation of precedent at
the international level, but also for standardizing domestic law.


TAKING SOVEREIGNTY SERIOUSLY

The ad hoc tribunals didn™t threaten most states™ sovereignty because they
were exclusively focused on crimes in de¬ned territorial areas (former
Yugoslavia and Rwanda) and for speci¬c time periods (from 1991 onward
and during 1994, respectively). For Yugoslavia and Rwanda, the tribunals
had jurisdictional ˜˜primacy™™ “ they could demand extraction of suspects for
trial at The Hague even if prosecution was under way in domestic courts. A
permanent court was different. States were willing to permit the Court to
look widely into the possibility that crimes were taking place, but they
interposed careful limits and tests between the Court identifying possible
crimes and actually bringing suspects to The Hague for prosecution. No
primacy for the ICC: complementarity is its watchword.
The preamble emphasizes ˜˜that the International Criminal Court estab-
lished under this Statute shall be complementary to national criminal
jurisdictions,™™ and Article 1 repeats that the ICC ˜˜shall be complementary to
national criminal jurisdictions,™™ but the terms ˜˜complementary™™ and
˜˜complementarity™™ are nowhere explicitly de¬ned. The general principle is
that national prosecution of international crimes takes precedence over
international prosecution, as long as the national process is legitimate. Should
appropriate states fail to carry out their responsibilities, and the Court has
jurisdiction, the Court can step in. The ¬ner points of complementarity rest in
the Court™s range of jurisdiction, the criteria for cases™ admissibility for trial,
the scope of, and limits to, the Prosecutor™s independence, the Court™s rela-
tionship to the UN Security Council, and the range of states™ obligations to
78 Building the International Criminal Court

the Court. How these are implemented determines how organizational
autonomy will be limited by state dominance.29


Triggers
The referrals to, and investigations carried out by, the Prosecutor are of
˜˜situations,™™ a term unique to the Statute that refers to con¬‚ict situations,
rather than to speci¬c cases. This somewhat oblique term was developed
during the Statute negotiations to avoid prejudging the existence or nature
of a con¬‚ict that might be taking place. Once a ˜˜situation™™ is under
investigation, evidence of crimes may emerge that implicates particular
suspects. That™s where criminal charges come in. During the Rome
negotiations, states agreed on three ˜˜trigger™™ mechanisms for the Court.30
The UN Security Council can refer a (con¬‚ict) situation to the Court under
Chapter VII of the UN Charter; a state that is party to the Statute can refer
a situation to the Court™s Prosecutor; or the Prosecutor can initiate an
investigation into a con¬‚ict situation on his or her own authority (proprio
motu). In all of these, the Prosecutor begins with an informal investigation
to determine whether crimes under the Statute have taken place. If the
Prosecutor determines that such crimes have taken place, under a Security
Council referral he or she can proceed with a formal investigation and
then request warrants for arrest from a Pre-Trial Chamber (of judges) if
particular suspects have been identi¬ed. If the Prosecutor proceeds on
the basis of a state referral or prioprio motu, a go-ahead must be obtained
from a Pre-Trial Chamber to move from the informal stage to a formal
investigation.


Jurisdiction
How would the Court determine when it could step in, beyond a prelimi-
nary investigation? Countries that approached the Statute negotiations
primarily concerned with protecting their sovereignty (and these tended to
be the permanent members of the Security Council) sought a limited Court
under the control of the Security Council and from whose jurisdiction their
own nationals could be exempt.31 A UN Security Council referral would be


29
El Zeidy, ˜˜The Principle of Complementarity: A New Machinery to Implement
International Criminal Law™™ (2002), 869“975.
30
Statute Article 13.
31
Kaul, ˜˜Special Note,™™ 50.
79
The Statute “ Justice versus Sovereignty

analogous to the ad hoc tribunals™ founding Security Council resolutions.
Such a resolution would indicate that a situation appeared to present
a threat to values enshrined in the UN Charter and would bind all UN
member states to cooperate with the Court. NGOs, the LMS group, and
other states sought to maximize the Court™s independence from the Security
Council to prevent it from becoming another adjunct of the permanent
¬ve states™ power. Negotiations to resolve the question of jurisdiction, when
states referred cases or the Prosecutor proceeded independently, were the
most highly contentious of the Rome Conference and were resolved
only on its last day. These negotiations ¬nally created a framework for
implementing complementarity.
Agreement over the complementarity principle “ that the Court would
take cases only when domestic courts in an appropriate state failed genu-
inely to prosecute32 “ had emerged early in the development of the Statute
as a key protection of state sovereignty. Implementing the doctrine required
establishing a connection between a crime and a duty to prosecute in the
¬rst instance on the part of a state or states and, secondarily (if they didn™t
act), for the ICC. In theory, a state™s duty to prosecute could be established
by any one or a combination of four possible links to the crime and suspect:
if the crime took place on the state™s territory (territorial state principle); if
the victims of the crime were nationals of the state (victim state principle); if
the suspect (having committed the crime on the state™s territory or else-
where) was on the state™s territory (custodial state principle); and/or if the
suspect was a national of the state (suspect state principle). The negotiations
and ultimate compromise showed that some states desired to create a court
with as close to universal jurisdiction as possible and that others were
reluctant to accept it.
The ILC draft of 1994 had proposed a voluntary jurisdiction regime that
came to be called an opt-in/opt-out system. States would join the Statute
and then accept or reject the competence of the Court on a case-by-case
basis. Alternatively, a ˜˜state consent regime™™ based on a 1996 French
proposal would have required acceptance of ICC involvement by all states
concerned (territorial, victim, custodial, and suspect states) in every indi-
vidual criminal proceeding against every individual suspect. The United
States and some other states, concerned to limit ICC jurisdiction, argued
that the only relevant criterion should be that the suspect state (state of
nationality of the suspect) would have to both be a party to the Statute
and agree to Court proceedings. Pursuing universal jurisdiction, in 1996

32
Statute Article 17.
80 Building the International Criminal Court

Germany proposed ˜˜automatic jurisdiction™™ under which states would
automatically accept Court jurisdiction when they acceded to the Statute.
At Rome, South Korea proposed as a compromise that if one or more of the
concerned (territorial, custodial, victim, or suspect) states was a Party, then
the ICC would have jurisdiction.33
The automatic jurisdiction proposal became the position of the LMS
and was ultimately adopted in the form of Statute Article 12(1), which says
that upon becoming a party to the Statute, a state ˜˜thereby accepts the
jurisdiction of the Court.™™34 However states™ acceptance of jurisdiction
is distinguished from the Court™s ability to exercise jurisdiction, which
it can do only if the territorial state or suspect state are parties to the
Statute35 or have agreed to the Court™s jurisdiction by a declaration to the
Registrar.
NGOs and many LMS viewed this compromise as much inferior to the
South Korean proposal, which would have included the custodial and vic-
tim states as potential links to the Court. The controversy demonstrated the
continuing importance of sovereignty claims in the context of institution
building, even when the institution is being constructed on the basis of new
international norms. Some states found even the compromise unacceptable.
Most importantly, the United States objected that by making jurisdiction
possible on the basis of the suspect or territory, the home state of a suspect
might have no ability to claim prior jurisdiction over the Court (proceeding
under territorial jurisdiction), and thus a United States citizen could be
brought before the Court even though the United States had not joined the
Statute. The United States claimed that this violated the principle that
a state could not be bound by a treaty that it had not signed.


Admissibility
The jurisdictional compromise established criteria linking the Court to
situations where crimes under its purview are suspected. Under comple-
mentarity, however, a case is inadmissible to the Court if a responsible state
is investigating or prosecuting the case, has decided after investigation not
to prosecute, or has tried the case already, unless such investigation or trial
was carried out to shield the suspect.36 This deferral to state authority

33
Kaul, op cit., 53.
34
Statute Article 12.1: ˜˜A State which becomes a Party to this Statute thereby accepts the
jurisdiction of the Court with respect to the crimes referred to in article 5.™™
35
Statute Article 12.2(a) and (b).
36
Statute Article 17.1(a“d).
81
The Statute “ Justice versus Sovereignty

continues an old pattern, of both unsuccessful and successful attempts to
create international jurisdictions, of subordinating international to state
authority.37
The ICTY and ICTR are aberrations from the pattern of putting
domestic jurisdiction ¬rst, international jurisdiction second (or, in ICC
terminology, the pattern of complementarity). The two ad hoc tribunals
were established with ˜˜concurrent jurisdiction,™™ but ˜˜shall have primacy
over national courts.™™38 Primacy was con¬rmed by the ICTY Appeals
Chamber in the Tadic case.39
Discussions in the ICC ad hoc committee and at the PrepCom meetings
sought a formula that would enable the Court to act if no state-level pro-
secutions were taking place or if prosecutions that were undertaken were
somehow fraudulent. Long negotiations produced an agreement that for the
Court to take a case, it would have to be convinced that the state(s) that
should be prosecuting were ˜˜unwilling or unable genuinely™™ to do so.
Unwillingness would be shown when proceedings were not being pur-
sued or appeared to be intended to shield the person from responsibility,40
were unjusti¬ably delayed,41 were not conducted ˜˜independently or
impartially™™ or were conducted in a manner ˜˜inconsistent with an intent to
bring the person concerned to justice.™™42 Inability considerations would
include ˜˜whether, due to a total or substantial collapse 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.™™43 For a case to go to trial, the Prosecutor would need to

37
El Zeidy, op cit., 870“4, argues that states™ primary responsibility to punish international
crimes is shown, for example, by the decision of the victorious allies of World War I to turn
over prosecution of Germans suspected of committing war crimes to the German Supreme
Court at Leipzig. They also proposed in the (unrati¬ed) 1920 Treaty of Sevres to grant
themselves the right to try Turkish perpetrators of massacres against Armenians, but in the
1922 Treaty of Lausanne, deferred to Turkish sovereignty by dropping the idea.
Under the London Agreement after World War II, the International Military Tribunal
(IMT) at Nuremberg tried only the select few Germans who were accused of being ˜˜the
major criminals, whose offenses have no particular geographic localization,™™ the rest of the
suspects were to be tried in courts set up in the countries where they had committed their
crimes.
The Genocide Convention™s Article 5 conceived of an international tribunal but af¬rmed
the responsibility of the state in which the crime has taken place to prosecute transgressors.
38
ICTY Statute Article 9; ICTR Statute Article 8.
39
ICTY, Prosecutor v. Dusko Tadic, appeals para. 55.
40
Statute Article 17.2(a).
41
Statute Article 17.2(b).
42
Statute Article 17.2(c).
43
Statute Article 17.2(d).
82 Building the International Criminal Court

convince a Pre-Trial Chamber that the case was admissible. Thus, state
jurisdiction is primary; the ICC is complementary: sovereignty is protected.


Prosecutor™s Independence
Beyond jurisdiction and admissibility, a third major area in which concerns
over sovereignty entered into the negotiations was the ICC Prosecutor™s
independence. Under the ILC draft, the Prosecutor could have initiated
investigations after having received a complaint under the Genocide Con-
vention from a state that was party to both the Convention and the Statute,
or having received a complaint from a custodial or victim state about
a crime having been committed for which the state had accepted jurisdic-
tion of the Court, or by referral from the Security Council under Chapter
VII of the UN Charter. But NGOs and some of the LMS pressed for a much
more independent prosecutor, and the Statute re¬‚ects their victory. Under
the Statute, the Prosecutor can initiate inquiries under his own authority
(proprio motu) upon receipt of information from any source. The United
States and some other states vigorously opposed this degree of prosecuto-
rial independence, concerned that it could produce an out-of-control
prosecutor lacking accountability to an appropriate judicial or legislative
body.
In an effort to assuage concerns about the potential for a loose-cannon
prosecutor, and taking a page from the civil-law tradition, the Statute
negotiators agreed to establish a pretrial judicial chamber to which the
Prosecutor would have to go to gain approval for pursuing proprio motu
investigations, to issue arrest warrants, and to move toward trial with
hearings on the con¬rmation of charges once a suspect was arrested. Under
civil-law traditions, presentation of cases to Court by a prosecutor generally
follows submission of information to a judge who decides whether there is
reason to proceed with the case. Judges in this stage typically review entire
case dossiers prepared by prosecutors (unlike common-law procedures
wherein the trial judge comes to the trial without prior review of the case
against the defendant).
Creation of the Pre-Trial Chamber was also a reaction by civil-law country
representatives to what they perceived as the overly common-law-dominated
structure of the ICTY and ICTR. Once the Court began operating, the Pre-
Trial Chambers appeared to be seeking an expansion of their responsibilities to
more closely approximate the judges of a civil-law proceeding, and the Of¬ce
of the Prosecutor sought to restrain inroads upon prosecutorial independence
(see Chapters 4 and 7).
83
The Statute “ Justice versus Sovereignty


The Security Council

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