Studies On The Complementatrity Principle Of The International Criminal Court

The newly-established International Criminal Court has to face a complicated relations of network. The relationship between the International Criminal Court and the national courts is the most important one. The International Criminal Court does not serve as the supranational judicial institution, it can not replace the status of the national courts whithin the field of preventing and punishing international crimes, it can only complement the national courts when national courts are unwilling or unable to perform the relevant prosecution and punishment, the International Criminal Court could exercise its jurisdiction. The author brouses many international conventions with criminal nature and takes the drafting materials of relevant conventions as reference. Based on the provisions of The Statue of International Criminal Court,(hereinafter The Rome Statue) the thesis explores the definition and historical development of the complementarity principle of the International Criminal Court and its reflections in The Rome Statue. The author hopes that the readers could have a deep understanding about the complementarity principle of The International Criminal Court and provides a few efforts for the research of the International Criminal Court. The whole thesis is divided into four parts: Chapter One presents the definition and historical development of the complementarity priciple of the International Criminal Court. At first, the author goes to the topic directly and thinks that there is no concrete definition concerning with the complementarity principle. But looking through the provisions of The Rome Statue and the negotiating process of it, we can define the complementarity priciple in the following three aspects. First of all, from the aspect of national criminal judicial system, the principle of complementarity means that compared with the jurisdiction of the Internationa Criminal Court, the criminal jurisdiction of national courts lie in the principal and primary situation. Secondly, from the aspect of the International Criminal Court, the principle of complementarity means that the International Criminal Court can exercise its jurisdiction only under some special or exceptional conditions. Thirdly, as an international organization, the International Criminal Court has the necessary legal personality and capacity. In the second section of this chapter, by analysing the drafting materials of Convention on the Prevention and Punishment of Crime of Genociden 1948(hereinafter Genocide Convention), we can find out at that time some countries'representatives had proposed the permanent International Criminal Court could only complement the domestic court . Only when the latter can not perform the prosecution or had failed, the International Criminal Court might exercise its jurisdiction. The International Criminal Tribunal for the Former Yugoslavia (ICTY) was created ad hoc by a decision of the United Nations Security Council to deal with the unique situation in the former Yugoslavia. According to the relevant provisions of the ICTY Statue, both the ad hoc tribunal and the national court have concurrent jurisdiction, while the statue grant the tribunal primacy over the jurisdicton of national courts. At any stage of the procedure, the International Tribunal may formally request the national courts to defer to their competence. However, the notion of primacy proved problematic from the beginning. The permanent members of the Security Council made statements that reflected their opposition to the ICTY's primacy. The sovereign states can't give up their jurisdictions with ease then transfer their jurisdictions to the international judicial institutions. Considering the ad hoc nature of the International Tribunal and its time and territorial restrictions, to grant it the primacy will not infringe the sovereignty of states.But in order to establish a permanent International Criminal Court , the primacy is not the best choice. Therefore theprinciple of complementarity comes to the stage then plays an important role in creating the International Crminal Court. Chapter Two presents the reflections of complementarity principle in The Rome Statue. The author thinks that the complemetarity principle can be reflected in the three conditions under which the International Criminal Court may exercise its jurisdiction. The first is the condition that the related states accept the jurisdiction of the Internaional Criminal Court. The second is that the related states are unwilling or unable to prosecute. The third is that since the related accused has been aquitted or convicted to be guilty, the International Criminal Court can not trigger the second prosecution. In this chapter, the author introduces the consent priciple, the substantial condition of admissability and the ne bis in idem principle respectively. Generally speaking, The Rome Statue implements the complementarity principle of the International Criminal Court. It lays down a series of safeguard provisions to guarantee the national courts can exercise the primacy jurisdiction over the international crimes. Only under exceptional circumstances, the Internationl Criminal Court can intervene. Chapter Three discusses the obstructions to implement the complementarity principle of the International Criminal Court. There are two problems in this chapter. One is the Proprio Motu right of the prosecutor. The prosecutor is only responsible for the chambers of the International Criminal Court, there is no outside check and balance system. The prosecutor's unconstrained authority has the potential to erode complementarity then creates the de facto International Criminal Court superiority over sovereign states because of the subjective factors. The other is the political influence of the Security Council. As an international judicial institution, the International Criminal Court is deemed to pursue the justice and independence. But it is quite impractical to ignore the political influence totally, the Security Council is the only...