Sample Essay On National Jurisdiction And The Principle Of Complementarity
This paper addresses the relationship between the principles of complementarity and national jurisdiction and the benefits and disadvantages of their implementation. Although the two concepts are well known, since both are normally involved in international incidents within highly charged political circumstances there remain a number of obstacles to their effective implementation. This paper advocates that national jurisdiction is and should remain the primary method principle in dealing with cases of international crime but that complementarity is a necessary and useful method for the International Criminal Court to exert its jurisdiction in the event that national jurisdiction is unworkable or ignored.
One of the most basic elements of criminal law is jurisdiction. Jurisdiction refers to the authority a state or court has to enforce the criminal laws of the land through the arrest, trial, conviction and punishment of a defendant. In international law, states are traditionally regarded as having absolute jurisdiction over crimes and criminals located on its own territory or territory in which it controls. This form of jurisdiction is known as national jurisdiction. National jurisdiction can be further divided into territorial, nationality jurisdiction and passive personality jurisdiction.
The principle of territorial jurisdiction says a nation has authority to enacts and enforce criminal laws for actions that take place on its territory. Territory, in this case, refers to land, waterways, buildings and vehicles that are “flying the state’s flag” (Luban, O’Sullivan & Stewart, 2010). Additionally, territorial jurisdiction has also been interpreted to include authority over acts that were initiated outside of the state but whose effects are felt within the state. For example, a cybercrime that was committed in England against a bank in the New York City would, under international law, gives the U.S. jurisdiction over the crime and criminal.
The principle of nationality jurisdiction says a nation have authority over criminal acts committed by its citizens no matter where they are located in the world. Accordingly, if an American in London assaults an old lady on the street, international law also gives the U.S. jurisdiction over the crime and the perpetrator. Unlike the territorial principle, there are many reasons why a state may refrain from exercising nationality jurisdiction such as the host country is willing and able to effectively handle the case. More importantly, the exercise of nationality jurisdiction may create conflict with the host nation’s territorial jurisdiction (Luban, O’Sullivan & Stewart, 2010).
Passive personality jurisdiction is based on the idea that every nation has a responsibility to protect its own citizens from harm or injury. Accordingly, under passive personality jurisdiction, a nation has authority to enforce its criminal laws over foreign nationals that criminally harm or injure any of its citizens while they are located abroad. Notwithstanding the principles of territoriality and nationality, passive personality jurisdiction is often asserted by a nation when its citizen is injured and the host country is unable or unwilling to take any action. Moreover, it has been used when the perpetrator of the crime is a non-state actor such as a transnational terrorist group. For example, in 1986, the U.S. Congress passed the Omnibus Diplomatic Security and Antiterrorism Act which made it a federal crime for a terrorist abroad to kill a U.S. citizen (Luban, O’Sullivan & Stewart, 2010).
While the legal regime set out by national jurisdiction is fairly comprehensive and has historically been quite effective. The accused are generally prosecuted under the criminal laws of the jurisdiction where the acts were committed. Moreover, through extradition agreements, suspects who are no longer present in the county where the crime was committed can be “returned” to the jurisdiction of the host country. In extreme circumstances, the host nation can lure or even forcibly bring suspects living outside of its borders to a location of which it has jurisdiction over. For instance, in 1990, American military units invaded Panama in order to arrest and bring Panamanian leader General Manuel Noriega to the U.S. to stand trial for drug trafficking.
Despite the effectiveness of national jurisdiction in confronting domestic and transnational crimes, it has not proven very effective in policing international crimes. International crimes here refer to large-scale criminal acts perpetrated by one state against another or on its own citizens. Genocide, war crimes, and crimes against humanity are the most commonly known international crimes. Under international law, all states have a responsibility to fight against international crimes (Orentlicher, 1991). For example, if evidence proves that an American citizen current residing in the U.S. was guilty of war crimes; the U.S. would have a under international law to prosecute the individual.
However because these crimes often involve the participation of a state or occur where the authority of the state has collapsed, individual states often lack the means or will to enforce their criminal laws on perpetrators of international crimes that are either: (1) located on their territory, (2) are their national, or (3) have harmed their citizens. Under these circumstances, jurisdiction has often been given to an international criminal tribunal, such as the International Criminal Court (ICC), that has been given broad jurisdiction to enforce international criminal law on the perpetrators of international crimes wherever they are located. For example, the ICC has jurisdiction over genocide, crimes against humanity, war crimes, and crimes of aggression and a stated mission of, “bringing to justice persons who have committed the worst crimes known to humankind” (Luban, O’Sullivan & Stewart, 2010). Consequently, since the establishment of the ICC, both it and state parties have concurrent jurisdiction over international crimes.
In essence, the overlapping criminal jurisdiction of a nation and the ICC over international criminal law is similar to the overlapping territorial jurisdiction of England and the nationality jurisdiction of the U.S. in the case of the American assaulter mentioned above. But just as in the case of England and the U.S., if a nation and the ICC both have jurisdiction over an international criminal incident, which has priority in asserting its jurisdiction?
According to the ICC, it will only assert its jurisdiction over international crimes, when individual states with jurisdiction over the same crimes are “unable or unwilling” to prosecute. A state with jurisdiction is one that is either: (1) a party the Rome Statute, which is the treaty that established the Court; or (2) one that has agreed to allow the ICC jurisdiction over international crimes occurring on its territory (Rome Statute, 2002). The deference that the ICC shows to state is referred to in international criminal law as the principle of complementarity or simply complementarity. According the Rome Statute, complementarity is a “bedrock principle” that underlies its establishment (Rome Statute, 2002).
Complementarity requires the ICC to defer jurisdiction if a State with jurisdiction has already begun an investigation or prosecution, unless that State is unable or unwilling to genuinely carry out the investigation (Doherty & McCormack, 1999) The ICC itself determines when a State’s prosecution or investigation is sufficient to require a deferral of ICC jurisdiction. Accordingly, it is solely within the ICC’s discretion to exercise jurisdiction where it deems the responsible state unwilling. Under these circumstances, the ICC may investigate an individual even without the consent of the defendant’s state of nationality (Doherty & McCormack, 1999).
A state is “unable” when it does not have adequate procedures to cover the crimes within the jurisdiction of the ICC. To be sure, if a state does not have legislation covering one or more of the crimes within the jurisdiction of the Court, it may be relatively straightforward for the Court to determine that the state is ‘unable to genuinely’ proceed with the case. Furthermore, a state may prove unable when its laws or procedures do not conform to the standards of justice required by the ICC. These standards include that national proceedings observe principles of due process recognized by international law. Additionally, the ICC requires that a national proceeding is made in an appropriate forum for the prosecution of the suspect. Article 17 of the Rome Statute, which require states to conduct genuine national investigations that ensure offenders are brought to justice (Rome Statute, 2002). This indicates that the Rome Statute requires a trial. Trials fully implemented are universally recognized as an effective means to establish guilt and innocence determine the truth of criminality and mete out punishment (Orentlicher, 1991).
Over the last twenty-five years, for example, there has been a surge in the creation and use by nations of truth and reconciliation commissions (TRC) in resolving issues of international crime (Ellis, 2002). The goal of a TRC, like in all international criminal cases, is to bring “peace and reconciliation” to a region that has often been burdened by internecine ethnic conflict (Ellis, 2002). Moreover, TRC seek to resolve overt acts committed during and in furtherance of armed conflict. However, under ICC standards a TRC, by its mandate, is not a court with established standards but an administrative body with procedures that are fundamentally different from a judicial proceeding. International criminal proceedings have established certain minimum structural and procedural attributes that have aided in the development of a fairly complete body of international law and practice. While a TRC can grant full amnesty for any act an individual is accused of upon full disclosure, there is no evidence that this method will hinder impunity, give redress to victims or decrease the recurrence of the actions. More importantly, no appeal is available after the TRC has made its determination. Accordingly, any national proceeding must focus on investigating and prosecuting individuals for the most serious violations of international law. If a state cannot satisfy these requirements, the ICC has the right to assert its jurisdiction.
A state is “unwilling” if the national investigation is, for instance, designed to shield the person from criminal responsibility or conducted inconsistently with any intent to bring the defendant to justice. A state may fail to meet these standards when it shows that the purpose of the state’s investigation is completely inconsistent with the goal of the ICC, which is to deprive international criminals of the impunity they have enjoyed for far too long by virtue of the protection they receive from their states of nationality. If a state were to use a TRC, for example, the general belief would be that it was created as a way to avoid criminal proceedings and avoid the “hard questions of legal process” (Ellis, 2002). In short, when a state is found to be unable or unwilling to investigate or prosecute a suspect, it and cannot invoke the rule of complementarity and argue that it has national jurisdiction over the case.
There is a saying in criminal law that all crime is local. This is because consequently in respects to that idea national jurisdiction has been and should remain the primary method for states to investigate and prosecute criminal activity. In the case of international crimes, however, when a state does not have the ability to investigate or when it refuses to prosecute; complementarity offers an effective legal alternative for the international community to ensure that perpetrators are made to answer for their transgressions.
Doherty, K.L., & McCormack, T.L.H. (1999). Complementarity as a Catalyst for Comprehensive Domestic Penal Legislation. U.C. Davis Journal of International Law and Policy, 5, 147-165.
Ellis, M.S. (2002) The International Criminal Court and its Implication for Domestic and National Capacity Building. Florida Journal of International Law, 15, 215-235.
Luban, D., O’Sullivan, J.R., & Stewart, D.P. (2010). International and Transnational Criminal Law. New York, NY: Aspen Publishers.
Orentlicher, D. F. (1991). Settling Accounts: the Duty to Prosecute Human Rights Violators of a Prior Regime. Yale Law Journal, 100 (8), 2537-2615.
Rome Statute of the International Criminal Court – Rome Statute. (2002, Jul. 1). Retrieved on March 21, 2015, from http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf
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