Institute for International Law Working Paper No 98 - August 2006 Applying the Rome Statute's Complementarity Principle: Drawing Lessons from the ...

 
K.U. Leuven
                   Faculty of Law

         Institute for International Law

       Working Paper No 98 - August 2006

  Applying the Rome Statute’s Complementarity
Principle: Drawing Lessons from the Prosecution of
Core Crimes by States Acting under the Universality
                    Principle

                   Cedric Ryngaert

                                                      1
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                                                                                         2
Applying the Rome Statute’s Complementarity Principle:
     Drawing Lessons from the Prosecution of Core Crimes by
          States Acting under the Universality Principle

                                              Cedric RYNGAERT
                           Research fellow Fund for Scientific Research Flanders
                                       Institute for International Law
                                      University of Leuven (Belgium)

1. Introduction..................................................................................................................... 3
2. The principle of subsidiarity ........................................................................................... 5
3. Spain ............................................................................................................................... 7
4. France............................................................................................................................ 11
5. Belgium......................................................................................................................... 12
6. Germany........................................................................................................................ 13
7. Level of deference under the subsidiarity/complementarity principle ......................... 14
8. Lessons to learn for the ICC from bystander States’ practice so far ............................ 15

1. Introduction

    1. Pursuant to Article 17 of the Rome Statute of the International Criminal Court
(ICC), the ICC will only exercise its jurisdiction if a State fails to genuinely investigate
and prosecute a situation in which crimes against international humanitarian law have
been committed. The jurisdiction of the ICC is thus complementary to the jurisdiction of
States. In the absence of relevant decisions by the ICC Prosecutor or the Court on the
issue, the complementarity principle has been the subject of a heated scholarly debate.1
This debate has so far neglected how bystander States exercise their (universal)
jurisdiction over core crimes which a State with an intimate connection (territoriality,
nationality …) to such crimes is unable or unwilling to genuinely investigate and

1
  See inter alia J.K. KLEFFNER & G. KOR (eds.), Complementary views on complementarity : proceedings of
the International Roundtable on the Complementary Nature of the International Criminal Court,
Amsterdam, 25-26 June 2004, The Hague, TMC Asser Press, xvi + 181 p.; C. STAHN, “Complementarity,
Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal
Court”, 3 J.I.C.J. 695 (2005); L. YANG, “On the Principle of Complementarity in the Rome Statute of the
International Criminal Court”, 4 Chinese J. Int’l L. 121 (2005); E. CARNERO ROJO, “The Role of Fair Trial
Considerations in the Complementarity Regime of the International Criminal Court : from "No Peace
without Justice" to "No Peace with Victor's Justice"?”, 18 Leiden J. Int’l L. 829 (2005); M. BENZING, “The
complementarity regime of the International Criminal Court : international criminal justice between state
sovereignty and the fight against impunity”, 7 Max Planck Yb. UN Law 591 (2004); J.K. KLEFFNER, “The
Impact of Complementarity of National Implementation of Substantive International Criminal Law”, 1
J.I.C.J. 86 (2003); M.M. EL ZEIDY, “The Principle of Complementarity : a New Machinery to Implement
International Criminal Law”, 23 Mich. J. Int’l L. 869 (2002).

                                                                                                                                        3
prosecute. In this note, it will be examined whether the ICC could draw lessons from
bystander States’ experiences with a perceived ‘subsidiarity’ principle, pursuant to which
jurisdiction is only exercised on a subsidiary or complementary basis. For the sake of
clarity, this note will refer to the ICC’s ‘able-and-willing test’ as ‘complementarity’ test,
whereas the same test as conducted by bystander States will be referred to as
‘subsidiarity’ test.

    2. In a previous note, I have argued that bystander States have an important role to
play in the universal prosecution of core crimes against international law, even after the
establishment of the ICC. 2 In that note, I submitted that there is no indication that
bystander States’ prosecutors and courts are running amok by exercising jurisdiction
when such is not warranted, or by trampling on foreign sovereignty. On the contrary,
sovereignty concerns have informed an on-going practice of far-reaching procedural and
jurisdictional restraint on the part of bystander States, which includes precluding victims
from initiating proceedings (Belgium, France, United Kingdom), 3 exempting
international crimes from mandatory prosecution (Germany),4 and restricting the rights of
appeal against a decision not to prosecute (Belgium, Germany, Denmark). 5 Clearly,
comity and jurisdictional reasonableness are principles guiding the exercise of universal
jurisdiction by bystander States.6 I also pointed out that, importantly, bystander States

2
  C. RYNGAERT, “Universal Jurisdiction in an ICC Era: A Role to Play for EU Member States with the
Support of the European Union”, Eur. J. Crime, Crim. L. & Crim. Justice 46 (2006).
3
   The risk of international tension caused States to scrap or contemplate scrapping victims’ rights of
initiation. Belgium scrapped the possibility of civil party petition in 2003 (see new Article 10bis and 12bis
of the Preliminary Title to the Code of Criminal Procedure, PT CCP). France contemplates scrapping it in
its pending ICC implementing legislation. See Draft Law Adapting French Legislation to the International
Criminal Court Statute and Amending Provisions of the Criminal Code, Military Justice Code, the Press
Freedom Law of 29 July 1881 and the Criminal Procedure Code. The United Kingdom contemplates
scrapping the possibility for victims of applying for a warrant for the arrest of a presumed perpetrator of an
international crime, after on September 10, 2005, a Senior District Judge issued, at the request of a number
of Palestinian victims, a warrant for the arrest of Israeli Major General (retired) Doron Almog on suspicion
of committing a grave breach of the Fourth Geneva Convention 1949 in the occupied Palestinian Territory.
See V. DODD, “UK Considers Curbing Citizens’ Right to Arrest Alleged War Criminals”, The Guardian,
February 3, 2006. Spain’s ‘popular action’ has so far withstood criticism.
4
  § 153 (f) of the German Code of Criminal Procedure (StPO).
5
  Belgium: Article 10, 1°bis, 2° PT CCP; Article 12bis, 2° PT CCP (providing that a prosecutor’s decision
not to prosecute is not amenable to appeal). See however Constitutional Court, judgment nr. 62, 23 March
2005, § B.9, available at www.arbitrage.be (annulled the 2003 act concerning the prosecution of grave
violations of international humanitarian law, insofar as it provided that there was no recourse against
certain decisions of the federal prosecutor); new Articles 10, 1°bis and 12bis of the PT CCP after
modification by act of 22 May 2006, Moniteur belge, 7 July 2006 (providing that if the complaint is clearly
without merit, if the facts listed in the complaint do not correspond to a definition of the international
offenses, or if the complaint cannot give rise to an admissible criminal prosecution, the federal prosecutor
should seize the Court of Appeals of Brussels). Germany: § 172 (2) StPO; OLG Stuttgart, Beschl. 13
September 2005, 5 Ws 109/05, NStZ 2006, 117, 119, § 25 (“Die eigentliche Ermessensentscheidung , d.h.
das Ermessen im engeren Sinne, ist im Rahmen des § 153 f StPO nicht justiziabel.”); Denmark: § 724 (1)
of the Administration of Justice Act (providing for an administrative appeal with the director of public
prosecution).
6
  It may be noted that the drafters of the authoritative Restatement (Third) of U.S. Foreign Relations Law
(1987), which purportedly reflects international law, did not believe that the jurisdictional rule of reason,
which they set forth in § 403, applied to the exercise of universal jurisdiction (§ 404). The Princeton
Principles on universal jurisdiction however rightly put a high premium on reasonableness, where they

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give effect to these principles by conducting a subsidiarity test, and that, when so doing,
they tend to be overly deferential to the interests of the national or territorial State.7 In
this note, bystander States’ subsidiarity principle will be further scrutinized, especially in
light of the ICC’s complementarity principle. It will be seen that, unlike what I tentatively
concluded in my previous note, there are opposite forces at work, with some States
applying a subsidiarity principle that seems indeed too deferential to foreign interests, yet
with other States applying a principle that appears to take legitimate foreign interests
insufficiently into account. Quite likely, the ICC will have to chart a perilous course
between Scylla and Charybdis, at the same time avoiding the temptation of deferring to
half-hearted investigative efforts by the presumed offender’s home State and the
temptation of valiantly prosecuting crimes of which the solution may rather lie in local
justice or political reconciliation.

2. The principle of subsidiarity

    3. Under the principle of subsidiarity as understood here, bystander States, when
asserting universal jurisdiction, defer to the territorial State or the State of nationality of
the presumed offender if the latter is (genuinely) able and willing to prosecute.8 It has
been argued that universal jurisdiction is precisely based on the subsidiarity principle,
and that it thus only functions as a last resort solution so as to prevent impunity from
arising.9 The principle of subsidiarity features prominently in a 2005 resolution of the
Institute of International Law. 10 As already stated, it resembles the principle of

provide for a mechanism to resolve competing claims of jurisdiction. See Article 8 of the Princeton
Principles on universal jurisdiction on the resolution of competing national jurisdiction (reprinted in S.
MACEDO (ed.), Universal Jurisdiction, Philadelphia, University of Pennsylvania Press, 2004, p. 23)
7
   C. RYNGAERT, “Universal Jurisdiction in an ICC Era: A Role to Play for EU Member States with the
Support of the European Union”, Eur. J. Crime, Crim. L. & Crim. Justice at 60-63 (2006).
8
   In the law of federal systems or integrated international organizations, subsidiarity has a different,
although not entirely unrelated meaning. It implies that the federal entity or the international organization
may only take action if and in so far as the objectives of the proposed action cannot be sufficiently achieved
by the entities of the federation or the Member States and can therefore, by reason of the scale or effects of
the proposed action, be better achieved by the federal entity or the international organization. See in
particular Article 5, § 2 of the Treaty Establishing the European Community.
9
   See on the conceptual underpinnings of the principle of subsidiarity; A. SANCHEZ LEGIDO, “Spanish
Practice in the Area of Universal Jurisdiction”, 8 Spanish Yb. Int’l L. 17, 38, 41 (2001-02) (“[The] stance,
taken in Spanish practice, based on recognition of the priority of the judge in the place where the crime was
committed, is fully coherent with the foundation upon which [...] the universality principle is based.”). See
also H.F.A. DONNEDIEU DE VABRES, Les principes modernes du droit pénal international, Paris, Sirey,
1928, at 169 (arguing in favor of a rigorous hierarchy of criminal jurisdiction, with the territorial State and
the State of the nationality of the perpetrator having priority over the bystander State); N. STRAPATSAS,
“Universal Jurisdiction and the International Criminal Court”, 29 Manitoba L. J. 1, 31 (2002) (arguing that
a national court exercising universal jurisdiction should be a venue of last resort “in order to respect the
principle of territoriality which is also jus cogens.”).
10
   INSTITUTE OF INTERNATIONAL LAW, Resolution of the 17th Commission on universal criminal jurisdiction
with regard to the crime of genocide, crimes against humanity and war crimes, Krakow Session, 2005, nr. 3
(c) (“Any State having custody over an alleged offender should, before commencing a trial on the basis of
universal jurisdiction, ask the State where the crime was committed or the State of nationality of the person
concerned whether it is prepared to prosecute that person, unless these States are manifestly unwilling or
unable to do so. It shall also take into account the jurisdiction of international criminal courts.”), nr. 3 (d)
(“Any State having custody over an alleged offender, to the extent that it relies solely on universal

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complementarity, set forth in Article 17 of the ICC Statute, pursuant to which the ICC
only declares a case admissible in case a State fails to genuinely investigate and prosecute
it

    4. This note is strongly in favor of the application of a subsidiarity test. As far as
reasonably possible, bystander State should give priority to States with a stronger nexus
to the situation: the territorial or the national State.11 The territorial or national State may
indeed be a better forum in light of the proximity of the evidence, the knowledge of the
accused and the victims, and the better perspective which it has on all circumstances
surrounding the crime.12 Moreover, the entrenchment of the rule of law in States with
historically weak judicial systems, typically developing countries, requires that bystander
States with stronger judicial systems, typically industrialized countries, enable the former
States to assume their responsibility in putting an end to a culture of impunity. 13
Although prosecutions on the basis of the universality principle may have a catalytic
effect on home State prosecutions, bystander States should exercise appropriate restraint
in case the home State is able and willing to investigate and prosecute a situation in
which a core crime has been committed.14

    5. Article 17 of the ICC Statute obliges the ICC to conduct an ‘able-and-willing’
test. Regrettably, national laws rarely feature a provision with the same compelling force.
However, recent developments in national State practice demonstrate that prosecutors
and courts tend to apply a principle of subsidiarity in various forms. In this note, it will be

jurisdiction, should carefully consider and, as appropriate, grant any extradition request addressed to it by a
State having a significant link, such as primarily territoriality or nationality, with the crime, the offender, or
the victim, provided such State is clearly able and willing to prosecute the offender.”).
11
    See ICJ, Arrest Warrant, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, § 54
(“A State contemplating bringing criminal charges based on universal jurisdiction must first offer to the
national State of the prospective accused person the opportunity itself to act upon the charges concerned”).
Contra A. POELS, “Universal Jurisdiction In Absentia”, 23 Neth. Q. Hum. Rts. 65, 83 (2005) (arguing that
priority should be given to the State exercising universal jurisdiction in absentia, “as the subsequent
commencement of investigations and prosecutions by the other State on the basis of the territoriality or
personality principle will probably be concurrent with political pressure and judicial bias”).
 12
      See D.F. ORENTLICHER, “Whose Justice? Reconciling Universal Jurisdiction with Democratic
Principles”, 92 Georgetown L. J. 1057, 1132 (2004) (“If consent that takes the form of pre-commitment
validates the exercise of foreign jurisdiction, courts that can exercise universal jurisdiction should
nonetheless respect the right of the "home state" to prosecute offenders if its courts are willing and able to
bring them to justice. By averting or dispelling a culture of impunity, in-country justice provides the surest
guarantee that human rights will be respected in the future, provided there are sufficient guarantees of fair
process. Moreover, justice at home can more surely advance a wounded nation's recovery in the wake of
mass atrocity than the remote justice dispensed by foreign courts. Provided that they enjoy legitimacy, trials
in the state most affected by human rights abuses are more likely than prosecutions conducted a world
away to inspire ownership by societies that have endured mass atrocity. Thus, unless there is reason to
doubt the fairness or capacity of their courts, the claims of states that endured such crimes should be
honored.”). See also ICJ, Arrest Warrant, individual opinion Judge Rezek, § 4.
13
    See A.K. SHORT, “Is the Alien Tort Statute Sacrosanct? Retaining Forum Non Conveniens in Human
Rights Litigation”, 33 N.Y.U. J. Int'l L. & Pol. 1001, 1072-77 (2001).
 14
     The enhanced domestic accountability effect may ironically reduce the possibility of effective
prosecution in the home State, because the home State may tend not to investigate crimes on the ground
that a bystander State is investigating them. See also N. ROHT-ARRIAZA, The Pinochet Effect, Philadelphia,
PA, University of Pennsylvania Press, 2004, 195.

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shown that Germany, Spain, France, and Belgium all apply some sort of subsidiarity test.
Inexplicably, where this test is applied as a statutory matter (Germany, Belgium), States
appear to be more restrictive than when the test is applied as a (juris)prudential matter
(Spain, France).15 Nonetheless, because the States discussed in this note – which are the
States that have probably been most active in exercising universal jurisdiction – all apply
a subsidiarity principle, it could be argued that this principle may be in the process of
crystallization as a norm of customary international law – although its contours are very
vague.16 Hopefully, the International Court of Justice will provide more clarification on
the status under international law of the principle of subsidiarity in the context of the
prosecution of core crimes in Certain proceedings against France, brought by the
Republic of Congo in 2002.17 A judgment in this case will probably not be rendered
before 2009.18

3. Spain

    6. While the application of the principle of subsidiarity to the prosecution of
international crimes is not a statutory requirement in Spain, Spanish courts and
prosecutors nonetheless have conducted a subsidiarity analysis at least since 1998.19 In
the 2003 Peruvian Genocide case, the Spanish Supreme Court tightened the subsidiarity

15
     There does indeed not seem to be a logical correlation between the legal source of the subsidiarity
principle and the level of strictness of its application.
16
     See also M. COSNARD, “La compétence universelle en matière pénale”, in C. TOMUSCHAT & J.-M.
THOUVENIN (eds.), The Fundamental Rules of the International Legal Order. Jus Cogens and Obligations
Erga Omnes, Leiden, Boston, Martinus Nijhoff, 2006, 355, 359 (“un accord semble se dégager pour que, à
tout le moins la compétence universelle soit considerée comme seconde par rapport aux trois autres
[compétences]”). In its amicus curiae brief in the Sosa case before the U.S. Supreme Court (2004), the
European Commission was more skeptical though, stating that “[t]here is some support for the proposition
that the same approach [as the approach taken by the Article 17 of the ICC Statute, which sets forth the
complementarity principle] should be taken to the exercise of universal criminal jurisdiction”, thus
implying that the subsidiarity principle is not settled international law. See European Commission, amicus
curiae brief, Sosa v. Alvarez-Machain, 23 January 2004, p. 25. The Commission’s amicus curiae brief is
available at http://www.nosafehaven.org/_legal/atca_oth_EurComSupportingSosa.pdf
17
    ICJ, Certain Criminal Proceedings in France, Republic of Congo v. France, documents of proceedings
available at http://www.icj-cij.org/icjwww/idocket/icof/icoforder/icof_iapplication_20020209.pdf. This
case concerns the legality of the exercise of universal jurisdiction over torture offences committed in States
non-Parties to the UN Torture Convention under Article 5, § 2 of that Convention. The Republic of Congo
advanced as a subsidiary argument that States are obliged to apply a subsidiarity principle when exercising
universal jurisdiction (stating that Article 5, § 2 of the Convention « implique le caractère subsidiaire de la
compétence qu’elle prévoit par rapport à celles des Etats mentionnés au paragraphe 1, et, au premier chef,
de celle de l’Etat territorialement souverain. Il s’en déduit que si l’un de ces Etats a engagé une procédure à
raison des faits litigieux, l’Etat visé au paragraphe 2 est incompétent, quand bien même l’auteur présumé se
trouverait sur son territoire et n’aurait pas fait l’object d’une demande d’extradition »).
18
    By an Order of 11 January 2006, the Court fixed 11 July 2006 and 11 August 2008 as the respective
time-limits for the filing of these pleadings. See http://www.icj-cij.org/icjwww/idocket/icof/icofframe.htm.
 19
       See National Criminal Court, Pinochet, Rulings of 4 and 5 November 1998, available at
http://www.derechos.org/nizkor/arg/espana/juri.html (“[Article 6 of the Genocide Convention] imposes
subsidiarity status upon actions taken by jurisdictions different from those envisioned in the precept. Thus,
the jurisdiction of a State should abstain from exercising jurisdiction regarding acts constituting a crime of
genocide that are being tried by the courts of the country in which said acts were perpetrated or by an
international court.”) (as translated by A. SANCHEZ LEGIDO, “Spanish Practice in the Area of Universal
Jurisdiction”, 8 Spanish Yb. Int’l L. 17, 38, 39 (2001-02).

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principle somewhat, terming it the ‘principle of necessity of jurisdictional intervention’.20
Under both principles, Spanish authorities were precluded from exercising their
jurisdiction if the territorial authorities proved able and willing to prosecute international
crimes. In case of competing jurisdictional claims, the territorial or national State was
deemed to enjoy jurisdictional priority.21 In 2005, however, in the Guatemala Genocide
case, the Spanish Constitutional Court rejected the subsidiarity test as unduly burdensome
for the victims. 22 In this subsection, the Constitutional Court’s reasoning will be
discussed. It will be shown that the Court only abandoned subsidiarity from a legal point
of view, but not from a practical point of view. In practice, Spanish prosecutors and
courts will defer to the territorial or national State if the latter conducts an investigation in
good faith. Nonetheless, the new approach will undoubtedly result in more admissibility
decisions. It has already shown that it has teeth: in January 2006, the Spanish National
Court ordered the investigating judge to open an investigation into the genocide allegedly
committed by China in Tibet, holding that China was unwilling to prosecute the alleged
violations.

Guatemala Genocide

     7. In Guatemala Genocide, the Constitutional Court rejected the prioritization of the
grounds of jurisdiction under international law. While it admitted that procedural and
political-criminal reasonableness might point to a priority of the locus delicti, it did not
consider that priority to be a rule of international law.23 Thus, there would be no rule that
would give jurisdictional priority to the territorial State under some sort of subsidiary
principle. This is however not to say that the Constitutional Court advocated the
assumption of universal jurisdiction regardless of whether the territorial or national State
initiated investigations and prosecutions. It probably only intended to eviscerate the
narrow interpretation given over the years to the principle of subsidiarity by Spanish
courts, an interpretation pursuant to which Spanish courts would only hear a case in the
event of legal impediments or prolonged judicial inactivity in the territorial or national
State.24 The Constitutional Court opined that requiring proof of this impossibility and
inactivity amounted to a probatio diabolica which would jeopardize the right to an

20
    Supreme Court of Spain, Peruvian Genocide, 42 I.L.M. 1200 (2003). See also N. ROHT-ARRIAZA,
“Universal Jurisdiction: Steps Forward, Step Back”, 17 Leiden J. Int’l .L. 375 (2004). In the Peruvian
Genocide Case, the Supreme Court derived the principle of necessity of jurisdictional intervention from the
“nature and the finality of universal jurisdiction” (“la propia naturaleza y finalidad de la jurisdicción
universal”).
21
   The Spanish principle of necessity of jurisdictional intervention appeared to be stricter than the ICC’s
complementarity principle, in that it may not require a genuine quality judgment of the foreign State’s
effective prosecution. See also N. ROHT-ARRIAZA, The Pinochet Effect: Transnational Justice in the Age of
Human Rights, Philadelphia, PA, University of Pennsylvania Press, 2004, at 194; N. ROHT-ARRIAZA,
“Universal Jurisdiction: Steps Forward, Step Back”, 17 Leiden J. Int’l .L. 375, 383 (2004).
22
   Constitutional Court Spain (Second Chamber), Guatemala Genocide case, judgment No. STC 237/2005,
available at http://www.tribunalconstitucional.es/stc2005/stc2005-237.htm.
23
   Id., at II.4. See also N. ROHT-ARRIAZA, comment Spanish Constitutional Court, Guatemala Genocide
case, 100 A.J.I.L. 207, 213 (2006) (“Spain’s Constitutional Tribunal helped to clarify that such
accommodations [deference to the home State] are neither jurisdictional nor required – the International
Criminal Court’s “unable or unwilling” requirement does not apply to national courts.”).
24
   Constitutional Court Spain (Second Chamber), Guatemala Genocide case, at II.4.

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effective remedy guaranteed by Article 24.1 of the Spanish Constitution, and frustrate the
very finality of universal jurisdiction sanctioned by Article 23.4 of the Spanish Organic
Law and by the Genocide Convention.25

The high threshold required under the principle of jurisdictional necessity as put forward
by the Supreme Court in the Peruvian Genocide in particular could indeed be very
difficult to take for plaintiffs in Spanish proceedings. If impunity is not to arise, the
courts of bystander States should be entitled to pass judgment on the quality of
investigations and prosecutions in the territorial or national State, and should not wait
until that State takes action. The Constitutional Court did not clarify what standard should
govern this analysis. Probably, common sense should inform the analysis, and practical
considerations should be taken into account. If an investigation is underway in the
territorial or national State and if there are reasonable grounds to believe that this
investigation is undertaken in good faith, Spain should defer. It should not defer if there
is a prima facie finding of inactivity abroad,26 for instance if there is only a possibility
that foreign proceedings could be initiated in the future.27 Moreover, as ROHT-ARRIAZA
has pointed out, if a proper territorial or national forum becomes available later, after
Spain, or any bystander State for that matter, has begun its investigations and prosecution
under the universality principle, the latter State should not automatically defer, since
“considerations of judicial economy and “sunk costs” counsel continuing a prosecution
where it has begun”.28 Doubtless, the Constitutional Court has made the burden of proof
for plaintiffs much lighter, arguably even shifting it to the defendants. The exercise of
universal jurisdiction by Spanish courts is accordingly more likely now than ever before,
all the more so since Spanish voters voted the conservative government out of office in
2004, replacing it with a progressive one that does no longer oppose, for foreign policy
reasons, the prosecution of core crimes committed abroad.29

Tibetan Genocide

   8. The effects of the Constitutional Court’s judgment in Guatemala Genocide were
soon felt. On January 10, 2006, the National Court ordered the investigative judge to

25
   Id. (… “por cuanto seria precisamente la inactividad judicial del Estado donde tuvieron lugar los
hechos, no dando respuesta a la interposicion de una denuncia e impidiendo con ello la prueba exigida por
la Audiencia Nacional, la que bloquearia la jurisdiccion internacional de un tercer Estqdo y abocaria a la
impunidad del genocidio”).
26
   See email conversation with Professor RODRIGUEZ-PINZON, visiting professor, American University,
Washington College of Law, April 10, 2006.
27
   See email conversation with Professor ROHT-ARRIAZA, University of California, Hastings College of the
Law, April 19, 2006 (on file with the author).
28
   N. ROHT-ARRIAZA, comment Spanish Constitutional Court, Guatemala Genocide case, 100 A.J.I.L. 207,
212-13 (2006). Compare A. POELS, “Universal Jurisdiction In Absentia”, 23 Neth. Q. Hum. Rts. 65, 83
(2005) (arguing that “the subsequent commencement of investigations and prosecutions by the other State
on the basis of the territoriality or personality principle will probably be concurrent with political pressure
and judicial bias”).
29
   HUMAN RIGHTS WATCH, Universal Jurisdiction in Europe: The State of the Art, Vol. 18, No. 5(D), June
2006, p. 89, available at http://hrw.org/reports/2006/ij0606/ (noting, on the basis of an interview with a
Spanish official that “[t]he position of the national prosecution office concerning universal jurisdiction
cases generally reflects the position of the national government”).

                                                                                                             9
open an investigation into an alleged genocide in Tibet, subject of a complaint filed as a
‘popular action’ on June 28, 2005 against Jiang Zemin, former president of China, and
five other high-ranking Chinese officials. 30 The National Court pointed out in a
somewhat strange instance of adverse complementarity, that, since the International
Criminal Court did not have jurisdiction over core crimes allegedly committed in China,
because the violations were committed before the entry into force of the Rome State, and
because China is not a party to the Rome Statute, the unavailability of an international
tribunal might justify the exercise of universal jurisdiction by Spanish courts.31 More
convincingly, from a theoretical perspective at least, the National Court submitted that
the circumstances of the case and the lapse of time since the moment the alleged
violations took place (1998) testified to the unwillingness of China to seriously
investigate the violations, and to the uselessness of filing suit territorially.32 The Court
thereupon ruled that, in light of the acts listed in detail in the complaint, and the important
accompanying documents, it would be reasonable, and not amount to abuse of right, to
open an investigation.33 As the investigation was opened on the basis of a prima facie
finding of judicial inactivity on the part of China, the principle underlying the National
Court’s decision was clearly a far cry from the principle of necessity of jurisdictional
intervention set forth in the Peruvian Genocide case.

It appears that the Court in Tibetan Genocide premised the reasonableness of its exercise
of universal jurisdiction almost solely on the heinous nature of the acts alleged by the
complainants. This dovetails well with the position taken by the Restatement (Third) of
U.S. Foreign Relations Law (1987), which did not subject assertions of universal
jurisdiction to the rule of reason enshrined in Section 403 – a rule which applied to any
other jurisdictional assertion – arguably because reasonableness was guaranteed by the
fact that only specific crimes (violations of jus cogens and/or erga omnes obligations) are
subject to universal jurisdiction. The danger looms however that Spain, in its desire to see
justice done for victims of core crimes, may fail to respect foreign sovereignty by
exercising its jurisdiction over core crimes too readily, on the basis of a mere prima facie

30
   National Court, Criminal Chamber, January 10, 2006, Roll of Appeal No 196/05 (Spanish text on file
with the author).
31
   Id., legal consideration nr. 9 (c). Under Article 17 of the Rome Statute, the International Criminal Court
may only exercise its jurisdiction if other States, including bystander States, are unable and unwilling to
genuinely investigate and prosecute. Under the Rome Statute, States have primary jurisdiction and the
International Criminal Court has complementary jurisdiction. The National Court however seems to believe
that the jurisdiction of the International Criminal Court prevails over the jurisdiction of bystander States,
such as Spain in the Guatemala Genocide case. The Court in effect opines that only when the ICC is
unavailable may Spain bring its universal jurisdiction legislation to bear. It may be submitted that this is an
incorrect understanding of the role of the ICC’s complementarity principle, which, informed as it is by
considerations of State sovereignty, requires deference to any State’s investigations and prosecutions.
32
   Id., legal consideration nr. 9 (d) (“Por ultimo, en relacion a las posibilidades de que el pueblo tibetano
pueda hacer valer la pretension de justicia que aqui ejercita frente a los tribunals chinos, dadas las
circunstancias del caso, el lapso de tiempo desde que los hechos tuvieron lugar y las innumerables
gestiones realizadas por parte de las autoridades del Tibet segun se acredita en la aportacion documental
unida a la querella, hacen innecesario cualquier otra peticion en defense de sus derechos en el territorio
en el que los hechos denunciados ocurrieron”).
33
   Id., legal consideration nr. 10 juncto nr. 7 in fine (arguing that “debera examinerse … si se aprecia en el
case un ejercicio racional del derecho al presenter en Espana la querella origen de estas actuaciones”).

                                                                                                           10
finding of judicial inactivity. This is however not to suggest that this was the case in
Tibetan Genocide.

4. France

    9. It may appear that France does not apply a principle of subsidiarity, given the fact
that the Republic of Congo predicated its proceedings which it initiated against France in
2002 inter alia on France’s perceived lack of respect for the subsidiarity nature of the
universality principle. France was moreover the first State to cast aside an amnesty for
core crimes and thereupon convict the perpetrator.34 The subsidiarity principle is indeed
not enshrined in French law. Yet in practice, French prosecutors and investigating judges
seem to apply some version of it: they defer to the territorial State or the offender’s home
State if that State succeeds with a prosecution.35 This is however an approach which is
even less deferential to the territorial or national State than Spain’s approach. French
courts may only defer when a foreign prosecution has been finalized, not when it has
merely been initiated, even if there are good prospects that the case could properly be
finalized. It is at any rate utterly unclear what the elapse of time ought to be before a
French prosecutor or judge could start to exercise its jurisdiction. The French approach is
unsatisfactory, yet the havoc it may wreak is limited, since, as far as core crimes are
concerned, French prosecutors and judges only have universal jurisdiction over crimes of
torture,36 and not over crimes against international humanitarian law.37

34
   Ordonnance of the Juge d'instruction de Montpellier, May 25, 2001 (ruling that "quelle que soit la
légitimité d'une telle amnistie [granted by the Mauritanian authorities on June 14, 1993], dans le cadre
d'une politique locale de réconciliation, cette loi n'a d'effet que sur le territoire de l'Etat concerné et n'est pas
opposable aux pays tiers, dans le cadre de l'application du droit international. Elle n'a par conséquent
aucune incidence sur l'action publique pour l'application de la loi en France" ; stating that "[il] appartient
donc à la France, comme Etat signataire de la Convention de New York [i .e., the UN Torture Convention],
de se saisir des faits non prescrits ni amnistiés en France susceptibles d'entrer dans le champ d'application
de cette convention, quels que puissent être, en Mauritanie, les incriminations existantes en matière de
torture, leur délai de prescription ou leur amnistie".).
35
   HUMAN RIGHTS WATCH, Universal Jurisdiction in Europe: The State of the Art, Vol. 18, No. 5(D), June
2006, pp. 58-59.
36
   Although French courts and prosecutors have universal jurisdiction over torture, such jurisdiction may, in
accordance with Article 689-2 of the Code of Criminal Procedure, only be exercised if the suspect is
present in France. The Court of Appeals of Paris construed the presence requirement extremely strictly in
the Congo Beach case, precisely the case which sparked the ICJ proceedings initiated by the Republic of
Congo, by holding that before any investigation could be initiated, the presumed offender should be named
in the réquisitoire introductif, i.e., the act initiating the investigation, so as to ascertain his presence in
France. The presence requirement should thus be met before the investigation starts, although often only an
investigation could conclusively establish that the presumed offender is present in France. The judgment of
the Court of Appeals is not published. The main arguments of the Court’s reasoning can however be
retrieved from the website of the Fédération Internationale des Droits de l’Homme (FIDH), one of the civil
parties in the case. See FIDH, Groupe d’action judiciaire, “France. Compétence universelle”, June 2005,
pp. 18-24, available at http://www.fidh.org/IMG/pdf/cufrance29juin.pdf. See also Jeune Afrique
L’Intelligent / AFP, November 22, 2004. See on this case at length: C. RYNGAERT, “Universal Criminal
Jurisdiction over Torture: A State of Affairs After 20 Years UN Torture Convention”, Neth. Q. Hum. Rts.
571, 594-600 (2005).
37
    Whilst general French criminal law does not provide for universal jurisdiction over crimes against
international humanitarian law, two ad hoc laws explicitly confer universal jurisdiction upon French courts
for war crimes, genocide, and crimes against humanity committed in the territory of Rwanda and the

                                                                                                                 11
5. Belgium

    10. In Belgium, the international criminal law principle of subsidiarity is statutorily
provided for since the modification of the legislation concerning grave crimes against
international humanitarian law in 2003. 38 It is included in the restrictive conditions
surrounding prosecutions of international crimes, inserted into the Preliminary Title of
the Code of Criminal Procedure. 39 The federal prosecutor may refuse to initiate
proceedings if « the specific circumstances of the case show that, in the interest of the
proper administration of justice and in order to honor Belgium’s international obligations,
said case should be brought either before the international courts, or before the court of
the place in which the acts were committed, or before the court of the State of which the
perpetrator is a national, or the court of the place in which he can be found, and to the
extent that said court is independent, impartial, and fair, as may be determined from the
international commitments binding on Belgium and that State ».40

Pursuant to this ‘forum non conveniens’ provision,41 Belgium will defer to a State with a
narrower nexus to the case. There is however no hard and fast rule under Belgian law
which requires that the State with a narrower nexus be genuinely able and willing to
investigate and prosecute. The only requirement is that its courts are “independent,
impartial, and fair”, without it apparently being required that in a given case they are also
able and willing to dispense justice in an equitable manner. Moreover, the assessment of
the ability of a foreign State to conduct an investigation into and prosecution of
international crimes is, as the Belgian text has it, informed by “international
commitments binding on Belgium and that State”. Although the government assured that
this was only one factor in a more encompassing subsidiarity analysis,42 it is not fanciful
idea that the federal prosecutor will shun a tricky analysis of the investigatory ability and
willingness of a foreign State, and instead prefer black-letter ‘assurances’ stemming from
the ratification of an international treaty. There is not much cause for optimism, if one
recalls the atmosphere laden with pressure from the U.S. (which threatened to have

former Yugoslavia. Law No. 96-432 of 22 May 1996 adapting French legislation to the provisions of
United Nations Security Council Resolution 955 establishing the International Criminal Tribunal to
prosecute persons responsible for acts of genocide or other serious violations of international law
committed in 1994 in Rwanda and, for Rwandan citizens, in neighbouring states, Journal Officiel, 23 May
1996, English translation available at http://www.u-j.info/index/99335,79779; Law No. 95-1 of 2 January
1995 adapting French legislation to the provisions of United Nations Security Council Resolution 827
establishing an international criminal tribunal to prosecute persons responsible for serious violations of
international humanitarian law committed in the territory of the Former Yugoslavia since 1991 (amended
by Law No. 96-432 of 22 May 1996 and by Law no. 2002-268 of 26 February 2002 on cooperation with
the International Criminal Court), Journal Officiel, 3 January 1995, English translation available at
http://www.u-j.info/index/99260,79779.
38
   Act of 5 August 2003, Moniteur belge 7 August 2003.
39
   See Article 10, 1°bis PT CCP (prosecution of crimes against international humanitarian law on the basis
of the passive personality principle) and Article 12bis PT CCP (prosecution of international crimes under
the universality principle).
40
   English translation available in 42 I.L.M. 1258, 1267 (2003).
41
   Terms used inter alia by E. DAVID, « La compétence universelle en droit belge », Ann. Dr. Louvain
2004, 125.
42
   Parl. St. Kamer, B.Z. 2003, nr. 0103/003, p. 45.

                                                                                                       12
NATO headquarters removed from Brussels if Belgium failed to scale down its assertions
of universal jurisdiction) in which the provision was adopted at the time.43 The fact that a
refusal to initiate proceedings on subsidiarity grounds is a discretionary decision by the
federal prosecutor which is not subject to judicial review, unlike a refusal to initiate
proceedings on other grounds, is reason for additional concern.44 No application of the
subsidiarity principle by the Belgian federal prosecutor has so far been reported.

6. Germany

    11. In Germany, like in Belgium, application of the subsidiarity principle is statutorily
provided for, although, also like in Belgium, the federal prosecutor is not under an
obligation to apply it. 45 In the Explanations to the relevant provision, which was
modelled on the ICC Statute’s principle of complementarity, it was stated that "the
jurisdiction of third-party states (which exists under international law) must be
understood as a subsidiary jurisdiction which should prevent non-punishment, but not
otherwise inappropriately interfere with the primarily responsible jurisdiction."46

    12. In the Abu Ghraib case (2005), the subsidiarity principle was applied for the first
time by the federal prosecutor, who drew on both the German provision and Article 17 of
the ICC Statute.47 The prosecutor found in particular that there was no indication that the
United States, the national State of the alleged perpetrators, had refrained or would
refrain from criminal investigations. He held in this respect that the concept of
prosecution should be construed not in light of the alleged individual perpetrators or their
alleged offences, but in light of the entire ‘situation’ (Gesamtcomplex) as contemplated
by Article 14, § 1 of the ICC Statute. In my previous note, I have criticized this
determination, primarily on the ground that drawing a link between Article 17 and Article
14 of the ICC, as the federal prosecutor did, is not only unwarranted because the Rome
Statute, and certainly its admissibility provisions, do as such not apply in the German
legal order, but also because Article 14, § 1 of the ICC Statute only provides that “[a]
State Party may refer to the Prosecutor a situation in which one or more crimes within the
jurisdiction of the Court appear to have been committed…”, without linking this legal
basis for States Parties to seize the Court with the complementarity principle.48 I do not

43
    "U.S. Threatens NATO Boycott over Belgium War Crimes Law", The Guardian, June 13, 2003,
available at http://www.guardian.co.uk/nato/story/0,12667,976499,00.html
44
   A refusal to initiate proceedings on this ground is not taken by a judge, unlike a refusal to initiate
proceedings on other grounds. See Belgian Constitutional Court, Judgment nr. 62/2005, March 23, 2005,
available at www.arbitrage.be. New Articles 10, 1°bis and 12bis, 7th and 8th al. of the PT CCP, inserted by
the act of May 22, 2006, Moniteur belge, July 7, 2006.
45
   § 153 (f) of the Code of Criminal Procedure counsels against prosecution of a crime against international
humanitarian law if the offence is being prosecuted before an international court or by a State on whose
territory the offence is committed or whose national was harmed by it.
46
    Explanations on the Draft of an Act to Introduce the Code of Crimes against International Law,
http://www.iuscrim.mpg.de/forsch/legaltext/VStGBengl.pdf, p. 82.
     47
                  A      copy     of     the     decision     is      available       at    http://www.ccr-
ny.org/v2/legal/september_11th/docs/German_Prosecutors_Decision2_10_05.pdf .
48
   C. RYNGAERT, “Universal Jurisdiction in an ICC Era: A Role to Play for EU Member States with the
Support of the European Union”, Eur. J. Crime, Crim. L. & Crim. Justice 46, 63 (2006).

                                                                                                        13
retract my criticism here; I still believe that, if a situation is only generally being dealt
with by the home State, and some individual offenders are not punished for their
transgressions, deference to the home State under the subsidiarity principle may not be
warranted, unless the home State could advance very good reasons for granting impunity.
If anything, the prosecutor’s Abu Ghraib opinion could hardly be cited as authoritative as
far as the law of the ICC is concerned: only the Court itself has the authority to interpret
the provisions of the Statute.

7. Level of deference under the subsidiarity/complementarity principle

    13. Having surveyed the practice relating to the application of the subsidiarity
principle in selected European States, the question arises now what level of deference to
the home State under the subsidiarity principle is appropriate. On the one hand, it may be
argued that a high level of deference is warranted, because national prosecutors and
courts do not have the level of expertise to properly conduct an able-and-willing test that
the ICC has. In addition, the smooth conduct of international relations may
understandably impel States not to pass judgment on the acts perpetrated by officials of
other States. States Parties to the ICC Statute by contrast may more readily accept the
ICC’s lower level of deference in application of the complementarity principle, because
they have ratified the ICC Statute and have thus explicitly supported the complementarity
principle. For these reasons, a high level of deference to other States’ interests by States
asserting universal jurisdiction appears reasonable, and Belgian, German, and previous
Spanish practice in the field may be considered as justified.

    14. On the other hand, the fight against impunity requires a joint effort by States and
the ICC, as is clear from the preamble49 and Article 17 of the ICC Statute. The ICC will
never be able to prosecute all international crimes which are not adequately prosecuted
by the home State, so that bystander States will continue to have their role to play, in
particular as far as the prosecution of lower-level perpetrators is concerned. The
consistency of international criminal law requires that substantive and procedural aspects
of the prosecution of international crimes do not diverge too much. Similar admissibility
standards should govern international and national procedures, unless there is a
compelling reason for different standards.

There is no compelling reason for international and national courts to use a different
standard of subsidiarity/complementarity. From the perspective of the victims, it is
important that the impunity door is not left ajar. Especially if the ICC has no jurisdiction
over a case, bystander States should apply the subsidiarity principle as strictly as the ICC
would have applied the complementarity principle. Deciding otherwise would leave the
victims in the cold, without assurances that justice will be done by the home State. If the
ICC has jurisdiction over a case, the case for deference appears stronger, as, with the
entry into force of the ICC Statute, bystander States’ courts are no longer courts of last
resort. Because the ICC has an advantage in terms of expertise and legitimacy, bystander
States may believe that they should not bear the burden of prosecution, and that they

49
   “Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes …”

                                                                                                             14
might readily defer to territorial or national State. They are however mistaken, because
the fight against impunity is a joint enterprise of States, whatever their bond with the
perpetrator, and the ICC alike. Bystander States Parties to the ICC Statute stand actually
to lose their credibility if the ICC opines that they were unwilling to genuinely prosecute
a case over which they had jurisdiction under international law, e.g., in case the
perpetrator was present on their territory and they refused to initiate proceedings against
him, assuming that doing so was not their responsibility. Only if bystander States could
invoke the able-and-willing test as applied by the ICC and argue that the ICC would also
have deferred to the territorial or national State under Article 17 of the ICC Statute,
would they be able to justify their decision not to prosecute. Accordingly, it is also in the
interests of bystander States that the complementarity principle and the subsidiarity
principle mirror each other in ‘ability-and-willingness’ content. Bystander States should
then not defer more readily to the territorial or national State than the ICC would.

8. Lessons to learn for the ICC from bystander States’ practice so far

    15. In the previous subsection, a harmonization of the modalities of application of the
complementarity and subsidiarity principles has been advocated. The question then
ineluctably arises how a common principle should be given shape in practice. An all-
encompassing discussion of the desired application of the complementarity principle
obviously falls outside the scope of this note. Yet, in accordance with the research
question put in this note, an inductive approach that draws on bystander States’
experiences with the principle of subsidiarity may provide some useful insights. States
Parties to the Rome Statute – which all surveyed States are – are likely to favour pretty
much the same approach to subsidiarity/complementarity as they take at their national
level. Because European States have been the driving forces behind the ICC, it is not
unreasonable for the ICC to take their views on complementarity into account. After all,
the ICC could only function properly if it has the backing of the Parties to the Rome
Statute. If the ICC strays from the line drawn by States Parties, it stands to lose both its
credibility and legitimacy. In this final part, it will be examined whether the ICC could
draw some lessons from on the one hand the Spanish-French subsidiarity approach, and
on the other hand the German-Belgian approach.

    16. The Spanish-French approach to subsidiarity appears to be anathema to the
philosophy underlying Article 17 of the ICC Statute. This may preclude the ICC from
drawing much inspiration from Spanish and French practice. As set out supra, Spain and
France are willing to exercise jurisdiction after a prima facie finding of inactivity by the
home State of the offender. Article 17 of the ICC Statute, which reflects a compromise
between the need to fight impunity and the need to protect legitimate sovereign interests,
however requires that the ICC only exercise its jurisdiction when a State is genuinely, and
not merely prima facie, unwilling or unable to prosecute. The ICC should therefore
conduct a more in-depth analysis of the home State’s willingness and ability to prosecute.
Conducting this analysis, the ICC may for instance be unlikely to reject the opposability
of an amnesty out of hand, as a French investigating judge did in the Ely Ould Dah

                                                                                          15
case. 50 It may instead be expected that the ICC will accept certain amnesties if they
further the objective of long-term peace.51

    17. While Spanish and French experiences with the subsidiarity principle may not be
relevant for the ICC, German and Belgian practices may not be relevant either: where the
Spanish-French approach emphasizes the need to fight impunity over respect for
sovereign interests, the German-Belgian approach emphasizes sovereign interests over
the need to fight impunity. Both approaches fail to strike the balance that the drafters of
the Rome Statute had in mind. If the ICC were to adopt the German-Belgian view, it
could distort the compromise of Article 17 of the ICC Statute by deferring to States when
such is not warranted from a justice perspective. It is not in the interests of justice to
require that States only generally prosecute a ‘situation’ rather than that they see to it that
every individual offender is adequately dealt with (Germany). Nor is it in the interests of
justice to have a subsidiarity analysis informed by the fact that the courts of a State are
considered to be impartial, independent, and fair, or by the fact that a State is a party to a
relevant human rights treaty, irrespective of how it deals with the concrete case at issue
(Belgium).

    18. The answer to the question whether the ICC might draw lessons from bystander
States’ experience with the subsidiarity principle may be short and disappointing: no. Yet
the exercise has certainly not been in vain. It helps us to get the picture of the
sovereignty-justice balancing act clear. It shows starkly how some States Parties to the
Rome Statute emphasize one side of the equation, and other States the other side. It
teaches us that “the truth”, the ideal degree of tension between sovereignty and justice, as
collected from a comparison of State practice, informed and compounded by scientific
insights, will probably lie somewhere in the middle. The ICC may now better know
which pitfalls it ought to avoid, and that – it is a cliché, to be fair – it has to render a
Solomon’s judgment that accommodates both the advocates of State sovereignty and the
crusaders against impunity. When the Court soon pronounces itself on one of the
situations of which it is seized, its decision could provide the authority for bystander
States to set their record straight.

50
  Ordonnance of the Juge d'instruction de Montpellier, May 25, 2001.
51
  The possible peace agreement between Uganda and the indicted leaders of Uganda’s Lord Resistance
Army (LRA), an agreement which may grant amnesty to LRA members, will probably present the first
opportunity for the ICC prosecutor to clarify his prosecutorial policy on the subject of amnesties.

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