The Principle of Complementarity in the Rome Statute. Security Council referrals.

Abstract: The Rome Statute of the International Criminal Court was adopted July 17, 1998at the Rome Conference. The Statute entered into force July 1, 2002, after that 60 States had ratified the Statute. The International Criminal Court (ICC) has now established an administration in order to be able to fulfil its mission, its mandate: Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished... Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes. The Court has so far not tried any case and thus not had the opportunity to interpret its own Statute. The Rome Statute is a State agreement and the proceedings of the making of the Statute were surrounded by discussions and argumentation among States. The result is the Rome Statute, a statute consisting of compromises that give room for interpretations. This thesis will consider the principle of complementarity, included in Article 17 of the Rome Statute. This principle is seen as the corner stone of the Statute and provides with the rules regarding the admissibility of cases before the ICC. One of the main purposes of the ICC is to be complementary to national judicial systems, to work as a secondary solution when States are unwilling or unable to genuinely conduct national proceedings regarding alleged perpetrators of the crimes included in the Rome Statute. Furthermore, the importance of the principle of complementarity also is due to from the fact that criminal jurisdiction is one of the fundaments in State sovereignty, which leads to a reluctance with States to give up the right to exercise that jurisdiction to an international criminal tribunal, such as the ICC. This thesis will investigate an especially intricate aspect of the principle of complementarity, the principle's applicability in relation to referrals of situations by the Security Council of the United Nations. The Security Council has a mandate under the Rome Statute to refer situations to the ICC that the Council deem a breach or threat to international peace and security and it considers it necessary that the ICC investigates the situation in order to determine whether alleged perpetrators of the crimes included in the Rome Statute should be prosecuted. This aspect is interesting and therefore widely discussed since the Security Council has such an important and powerful role in the international community. It is held by some international legal scholars that because of the position of the Security Council in the international community, the principle of complementarity should not be applied on Security Council referrals&semic such referrals should be automatically admissible. Scholars of this opinion futher hold that the Rome Statute implies such an order. According to Article 19 of the Statute the ICC: [m]ay, on its own motion, determine the admissibility of a case in accordance with article 17. Furthermore, according to Article 18 (1) is the Prosecutor not obliged to inform States Parties and States that would normally exercise jurisdiction over the relevant situation when the Security Council has referred the situation to the ICC. This prevents the States that have started national proceedings to use the right in paragraph 2 of Article 18 to inform the ICC about its proceedings. These rules prove, according to some scholars, that the principle of complementarity need not be regarded on Security Council referrals. My opinion is that the principle of complementarity should be applied also on referrals from the Security Council and that the ICC is in fact bound under the Rome Statute to apply the principle. The ICC has its own international personality and is in no way bound by the decisions that the Security Council adopts. Thus even if the Council is one of the most powerful organs in the international community its decision to refer a situation to the ICC does not oblige the Court to investigate the relevant situation. Furthermore, Article 19 of the Rome Statute makes no difference between the different trigger mechanisms. Thus, the ICC is never, according to that article, obliged to investigate the admissibility of cases in regard of the principle of complementarity. However, Article 53 states that the Prosecutor must regard the principle before deciding to start an investigation. That article is applicable on referrals from the Security Council as well and proves, together with the purposes and the importance of the principle of complementarity, that the principle indeed must be applied on Security Council referrals. These different opinions regarding the applicability of the principle of complementarity and the different interpretations made by the Rome Statute will be investigated thoroughly in this thesis.