The International Criminal Court and National Courts: A Contentious Relationship
Williams, Sarah, Melbourne Journal of International Law
THE INTERNATIONAL CRIMINAL COURT AND NATIONAL COURTS: A CONTENTIOUS RELATIONSHIP BY NIDAL NABIL JURDI (FARNHAM, UK: ASHGATE, 2011) 303 PAGES. PRICE 65.00 [pounds sterling] (HARDCOVER) ISBN 9781409409168.
The ability to exercise criminal jurisdiction to try, and punish, those accused of serious crimes has long been considered an inherent element of the concept of the sovereignty of the state and, as such, has been zealously guarded by states. However, as notions of human rights and international criminal justice have developed, it is increasingly recognised that the sovereignty of states in this area is not absolute, particularly where the state concerned does not or cannot take steps to ensure accountability for those accused of committing international crimes. In such circumstances, states have accepted that sovereignty must be balanced against the community interest in ending impunity for such crimes and that accountability may be secured through the courts of other states (including jurisdiction based on the principle of universal jurisdiction) or before international criminal tribunals, including the International Criminal Court ('ICC'). Yet this does not mean that there is no role for national courts, in particular those of the territorial state, in prosecuting those accused of committing international crimes.
National legal systems continue to be important for several reasons. First, the tension between state sovereignty and accountability means that many states will object to the imposition of an international mechanism or the exercise of jurisdiction by a third state as an unwarranted interference with the state's sovereignty. In order to better resolve this tension, there is increased awareness that the role of other states and international organisations is to facilitate and support the development of national mechanisms wherever possible so that the majority of crimes are tried at the national level. In addition to accommodating the sovereignty of the state concerned, this may also achieve considerable practical benefits, including better access to evidence and witnesses, a greater connection to the victims of and societies affected by the crimes, as well as building the capacity of the national system to respond to complex and sensitive crimes. Secondly, the selectivity of international criminal justice and the limited jurisdiction of international criminal tribunals means that such tribunals are only able to prosecute individuals accused of committing international crimes in a small number of situations around the world. (1) Many other situations remain unaddressed, in part due to a lack of political will to respond to such situations with an international mechanism or to confer jurisdiction on an existing tribunal. Thirdly, even where an international mechanism may be able to exercise jurisdiction, due to finite resources, such institutions are unable to try all individuals and all crimes committed within a given situation. Instead, the tribunals will concentrate on crimes of sufficient gravity or the senior leaders or individuals considered most responsible for the crimes. For crimes and individuals falling outside this category, national mechanisms may be the only means of ensuring accountability.
The relationship between national courts and international criminal courts has long been a potentially contentious one. When the Security Council established the International Criminal Tribunal for the Former Yugoslavia ('ICTY') and the International Criminal Tribunal for Rwanda ('ICTR') it adopted a model of primacy, whereby national courts could be compelled to defer proceedings in favour of proceedings at the international level. (2) It was only as the ICTY and ICTR moved to implement their 'completion strategies' (3) that real attention was focused on how to build the capacity of national courts so as to receive some cases from the overburdened international courts. (4) When states negotiated the Rome Statute of the International Criminal Court ('Rome Statute'), (5) the role of national courts and the relationship between those courts and the ICC was viewed as one of the key aspects of the negotiations. …