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On the complementary principle of the jurisdiction of the
International Criminal Court
Geng ZHIMIN
1
School of International Law, University of World Economics and Diplomacy, School of Marxism, Jining
Normal University
ARTICLE INFO
ABSTRACT
Article history:
Received August 2023
Received in revised form
15
September
2023
Accepted 15
October
2023
Available online
25
November
2023
The birth of the International Criminal Court aims to
strengthen the punishment of serious crimes internationally
through international cooperation, but its jurisdiction is
related to handling the relationship between domestic courts
and the International Criminal Court. The establishment of the
Rome Statute stipulated the principle of complementary
jurisdiction of the International Criminal Court. This article
attempts to illustrate the significance, characteristics,
application, and submission of relevant countries and the
Security Council of the complementary principle of the
jurisdiction of the International Criminal Court, which has
been widely recognized by the international community. The
complementary principle of the jurisdiction of the
International Criminal Court has also been fully applied in
practice.
2181-
1415/©
2023 in Science LLC.
https://doi.org/10.47689/2181-1415-vol4-iss5-pp31-41
This is an open access article under the Attribution 4.0 International
(CC
BY
4.0)
license
(https://creativecommons.org/licenses/by/4.0/deed.ru)
Keywords:
principle of
complementarity,
jurisdiction
,
contracting state
Xalqaro jinoiy sud
yurisdiksiyasining to‘ldiruvchi prinsipi
to‘g‘risida
ANNOTATSIYA
Kalit so‘zlar
:
to‘ldiruvchilik prinsipi
,
yurisdiksiya,
ahdlashuvchidavlat.
Xalqaro jinoiy sudning tug‘ilishi xalqaro hamkorlik orqali
og‘ir jinoyatlar uchun jazoni xalqaro miqyosda kuchaytirishga
qaratilgan, ammo uning yurisdiktsiyasi mahalliy sudlar va
Xalqaro jinoiy sud o‘rtasidagi munosabatlarni ko'rib chiqish
bilan bog‘liq. Rim statutining o‘rnatilishi Xalqaro jinoiy sudning
qo‘shimcha yurisdiksiya tamoyilini belgilab berdi. Ushbu maqola
1
School of International Law, University of World Economics and Diplomacy, School of Marxism, Jining Normal
University
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xalqaro hamjamiyat tomonidan keng e'tirof etilgan Xalqaro
jinoiy sud yurisdiktsiyasining bir-birini to'ldiruvchi tamoyilining
ahamiyati, xususiyatlari, qo‘llanilishi va tegishli mamlakatlar va
Xavfsizlik Kengashi tomonidan taqdim etilishini ko‘rsatishga
harakat qiladi. Xalqaro jinoiy sud yurisdiksiyasining bir-birini
to‘ldiruvchi prinsipi ham amalda to‘liq qo‘llanildi.
О
дополнительном
принципе
юрисдикции
Международного уголовного суда
АННОТАЦИЯ
Ключевые слова:
принцип
дополнительности
,
юрисдикция
,
договаривающееся
государство
.
Цель создания Международного уголовного суда
заключается в усилении ответственности за тяжкие
международные
преступления
через
глобальное
сотрудничество.
Однако
его
юрисдикция
требует
грамотного взаимодействия с национальными судами.
Римский статут утвердил принцип дополнительной
юрисдикции Международного уголовного суда. Данная
статья призвана осветить значение, особенности и
практическое применение этого принципа, а также его
признание и восприятие со стороны разных стран и Совета
Безопасности. На практике дополнительный принцип
юрисдикции Международного уголовного суда активно
применяется.
An overview of the principle of complementarity in the jurisdiction of the
International Criminal Court
1. The meaning of the principle of complementarity
The establishment of the International Criminal Court is the result of the legal
creation and punishment of crimes, and many sovereign countries believe that the
establishment of the International Criminal Court will inevitably sacrifice or require the
transfer of some of their sovereignty. According to the principle of national sovereignty, a
country has the right to exercise jurisdiction over criminal acts within its territory, as well
as the right to exercise jurisdiction over criminal acts committed by its nationals outside
its territory. At present, there are situations where some sovereign countries are unwilling
or unable to exercise jurisdiction to curb serious criminal acts, which requires an
international institution to exercise jurisdiction over such serious international criminal
crimes. Balancing national sovereignty with the jurisdiction of the International Criminal
Court is by no means an easy task.
Respect for national sovereignty is a fundamental principle of international criminal
law, which is revealed in respect for the domestic jurisdiction of countries over
international crimes in terms of jurisdiction. This is also a common requirement for all
international organizations. Only when domestic courts are unable or unwilling to exercise
jurisdiction over international crimes can jurisdiction be transferred to the International
Criminal Court to bring the perpetrators to justice. Therefore, the complementary
principle of the jurisdiction of the International Criminal Court is manifested as under
normal circumstances, the jurisdiction to prevent, combat, and punish international
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criminal crimes is in the hands of sovereign states; only when sovereign states are unable
or refuse to exercise this jurisdiction can the International Criminal Court take over. On
the one hand, it respects the status of national sovereignty to ensure national jurisdiction,
and on the other hand, it effectively avoids the situation where the International Criminal
Court becomes a subsidiary institution of domestic courts of sovereign states. From this, it
can be seen that the International Criminal Court only plays a supplementary role and
cannot replace domestic courts. However this does not mean that the status of the
International Criminal Court is lower than that of domestic courts, and the purpose of the
principle of complementarity is to urge domestic courts to actively exercise their rights.
In summary, the jurisdiction of the International Criminal Court is a supplement to
national jurisdiction. When both domestic courts and the International Criminal Court
have jurisdiction over a crime, domestic courts have priority rights to investigate and
prosecute. Only domestic courts cannot punish crimes, and the International Criminal
Court exercises jurisdiction to ensure judicial fairness.
2. Characteristics of the principle of complementarity
Compared with the International Court of Justice, the principle of complementarity
of the International Criminal Court has the following characteristics: firstly, the principle
of complementarity has a statutory nature. Different from the conditions for the
establishment of the jurisdiction of the contracting parties of the International Court of
Justice, the jurisdiction of the contracting parties of the International Criminal Court is
automatically established when they become a contracting party. As long as they become
a contracting party, they recognize that the International Criminal Court has jurisdiction
over core crimes, which is in accordance with the relevant provisions of the Rome Statute.
Secondly, the principle of complementarity is humility. The Rome Statute lists four types
of crimes: genocide, harm to humanity, war, and aggression. The necessary prerequisite
for the International Criminal Court to have jurisdiction over it is to become a contracting
party or issue a declaration to accept the jurisdiction of the International Criminal Court.
The principle of complementarity respects fully the jurisdiction of sovereign states and
prioritizes the transfer of jurisdiction to sovereign states. Only when sovereign states find
it difficult to exercise effectively their jurisdiction will the International Criminal Court
take over the case for jurisdiction, which is an inverted priority jurisdiction. Finally, the
principle of complementarity is mandatory. The International Criminal Court has
established legal obligations for contracting parties. If the contracting party fails to fulfill
the obligation, it shall exercise jurisdiction on behalf of the contracting party. The
Contracting States shall not make reservations to the Statute.
Application of the principle of complementarity in the jurisdiction of the
International Criminal Court
1. Conditions for the exercise of jurisdiction by the International Criminal
Court
The International Criminal Court has jurisdiction over the four criminal acts
mentioned in the Rome Statute, but in the end, the court may not exercise its jurisdiction,
which only means that it has the basic premise to exercise this power. As a country joins
the Rome Statute, it signifies its recognition and acceptance of the jurisdiction of the
International Criminal Court over the aforementioned criminal acts. For non-contracting
parties, the International Criminal Court can also be granted jurisdiction by declaring
acceptance. But the jurisdiction of the International Criminal Court always plays a
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complementary role. However, there are also situations where the International Criminal
Court is unable to exercise its jurisdiction, namely: the first type is cases being prosecuted
or investigated by sovereign countries with jurisdiction; The second option is for the
country to investigate the incident and decide not to prosecute the relevant individuals;
The third principle is the principle of nonbis in idem, where the relevant personnel have
already received punishment; The fourth type is that the severity of the case is not
sufficient to initiate the investigation process. Faced with the first two situations, the
International Criminal Court needs to rule out the possibility of states being "unwilling"
and "unable" to investigate and prosecute to exercise its jurisdiction. 'Unwillingness'
includes three situations: the litigation that has already been or is currently underway is
to shield an individual; litigation is not timely, resulting in relevant personnel being at
large; the ongoing or ongoing litigation is unfair. The term 'cannot' mainly refers to the
situation where a country's internal judicial system is in a state of collapse or has
completely collapsed, making it unable to exercise jurisdiction. The subject of judgment for
"unwilling" and "unable" is the International Criminal Court.
2. The impact of the exercise of jurisdiction by the International Criminal
Court on non-contracting parties
The Rome Statute stipulates two paths for accepting the jurisdiction of the
International Criminal Court, namely becoming a contracting party or declaring
acceptance. However, for a serious international crime, the International Criminal Court
may have jurisdiction over the country where the crime is committed, the nationality of
the offender, and the nationality of the victim, but it ignores the feelings of the country
where the offender is supervised or the international community of the victim and violates
the sovereignty of the country. According to the provisions of the Rome Statute, non-
contracting parties can either modify their domestic laws through the first method of
becoming contracting parties; Either through the second approach, continue to adhere to
principles and resist the application of the Rome Statute.
The practice of the principle of complementarity in the jurisdiction of the
International Criminal Court
1. Submission of a situation by a country to the International Criminal Court
The submission of situations by countries to the International Criminal Court can be
divided into two categories: one is the submission of situations by contracting parties to
the International Criminal Court. One type involves noncontracting parties submitting
situations to the International Criminal Court. So far, the International Criminal Court has
accepted the situations submitted by the three contracting parties, Congo, Uganda, and the
Central African Republic, and the Prosecutor's Office has launched an investigation into the
situations submitted by Congo and Uganda. The Congo case was a series of devastating
cases in the early 20th century, including the massacre, which the President of Congo
hoped the International Criminal Court would have jurisdiction over. The Ugandan case is
also a case where the President of the country hopes that the International Criminal Court
will have jurisdiction to conduct an investigation. The third is the Central African Republic,
which submits all crimes committed within its territory after the entry into force of the
Rome Statute to the International Criminal Court. Prosecutors need to analyze the specific
situation and investigate the crimes they believe should be under their jurisdiction.
The above three contracting states have not exercised their jurisdiction in order to
prevent criminals from evading criminal responsibility and avoid the occurrence of
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impunity. The International Criminal Court is fully capable of exercising its jurisdiction. It
is equivalent to three contracting states abandoning the priority of national jurisdiction
granted by the Supplementary Principles of the International Criminal Court.
As a non-contracting party, Cote d'Ivoire stated in 2005 accepting crimes committed
within its territory since September 19, 2002. The International Criminal Court has
jurisdiction over relevant crimes, as stipulated clearly in the Rome Statute, and is also a
prerequisite for the application of the principle of complementarity.
2. The Security Council submits the situation to the International Criminal
Court
In addition to the countries mentioned above submitting situations to the
International Criminal Court, there are also cases where the Security Council submits
situations to the National Criminal Court, which is currently the case in the Darfur region
of Sudan. That is, the Security Council will refer the situation in Sudan's Darfur to the
International Criminal Court. As of now, Sudan is not a party to the Rome Statute, and
Sudan itself has objections to the exercise of jurisdiction by the International Criminal
Court. However, it is reasonable for the Security Council to still submit the situation in
Sudan to the jurisdiction of the International Criminal Court, specifically for the following
reasons:
Firstly, in 2003, the "Sudan Liberation Army" and others in the Darfur region of
Sudan launched antigovernment armed struggles, resulting in the displacement of nearly
one million Sudanese people. The situation in the Darfur region of Sudan has violated
human rights and humanitarian law, posing a threat to international peace and security;
There is no capacity or willingness to handle the situation within Sudan, and serious
criminal acts are ignored. To prevent those who have committed serious crimes from going
unpunished, armed conflicts in non-contracting countries can only be referred by the
Security Council to the International Criminal Court. The purpose of the establishment of
the International Criminal Court is to punish serious criminal acts.
Secondly, as the only international criminal justice institution, the International
Criminal Court can bring to justice individuals such as senior officials who have committed
serious criminal acts within the Sudanese government. And the members of the
International Criminal Court are authoritative figures from various countries, who can
ensure the human rights of defendants. As a permanent institution, the International
Criminal Court can immediately initiate proceedings.
Third, although the Sudan has established the Darfur Special Court, the level of
suspicion it has prosecuted is relatively low, allowing some people who have committed
serious crimes to go unpunished. At this time, the International Criminal Court can
investigate individuals who have committed serious crimes, exercising the complementary
function of the International Criminal Court.
In summary, Sudan, as the first situation submitted by the Security Council, has put
an end to impunity and played a leading role in stabilizing the Sudan region. However, it is
worth noting that it clearly stipulates the jurisdictional relationship between the
International Criminal Court and the domestic courts of sovereign countries, that is, the
former only serves a supplementary role and cannot surpass national criminal justice
institutions, but also plays a supervisory role.
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Epilogue
The principle of complementarity effectively addresses the admissibility and
operability of the International Criminal Court and also encourages the contracting parties
to the Rome Statute to better fulfill their mandatory obligations, requiring them to actively
fulfill their jurisdiction over international serious criminal acts.
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