National prosecutions and complementarity

States parties to the Rome Statute are sovereign and given every opportunity to investigate and, if necessary, to prosecute suspected grave crimes committed on their own territoerires or by their nationals. However, if states do not, either because they are unwilling or because they genuinely lack capacity to do so, the ICC will step in. 

In the Rome Statute, this two-step process is called complementarity: the ICC is complementing—rather than replacing—national criminal justice systems. Complementarity is designed not only to fill gaps in national investigations and prosecutions of Rome Statute crimes, but also primarily to encourage the domestic undertaking of such activities.

There also many ways states undertake prosecutions grave international crimes around the world that occur in parallel to but without falling under the Rome Statute framework.

Prosecution of historical grave crimes
Countries such as Argentina and Guatemala have established national processes to hold their citizens accountable for so-called ‘historical’ grave crimes. The ICC only prosecutes crimes committed after 1 July 2002, the date the Rome Statute entered into force.

Hybrid tribunals
Hybrid tribunals are ad hoc institutions created to address gross human rights law violations committed in a given territory for a limited period of time. They are composed of both international and local judges and apply a mix of international and national substantive and procedural law. Hybrid courts are usually located in areas where crimes occurred, thereby strengthening national judicial systems.

Examples of hybrid courts include the Extraordinary Chambers in the Courts of Cambodia (ECCC) to prosecute the Khmer Rouge leadership; the Special Tribunal for Lebanon (STL); the Special Court for Sierra Leone (SCSL); and the East Timor Tribunal.

Special mixed chambers
Some countries also create special judicial chambers to prosecute perpetrators of grave crimes. Bosnia-Herzegovina, for example, established a War Crimes Chamber to encourage reconciliation in Bosnia by bringing war criminals to justice. Unlike the International Criminal Tribunal for the former Yugoslavia, which operates under the United Nations umbrella, the War Crimes Chamber is entirely integrated into the domestic Bosnian legal system. While both international and national judges constitute the Chamber, the international judges component will be gradually phased out.

Universal jurisdiction
National prosecutions of war crimes, crimes against humanity and genocide can occur through the doctrine of universal jurisdiction, under which some crimes are deemed so serious that they harm the entire international community. Any state recognizing universal jurisdiction for such crimes may prosecute their perpetrators.

There are two distinct views on universal jurisdiction: the narrow view, which requires a minimum link between the state and the alleged perpetrator, such as his or her presence on the territory of the prosecuting state, or a link between the prosecuting state and the crimes; and the broader view, in which no connection is required between the state and the perpetrator or crimes.

Universal jurisdiction is an important tool in the fight against impunity, for it allows ‘third-states’ to aid in the prosecution of the world’s gravest crimes.

Many universal jurisdiction proceedings involve historical crimes. Examples include the Spanish trial of former Chilean dictator Pinochet; the conviction by a Belgian court of two Rwandan nuns for crimes during the 1994 genocide; the conviction of Bosnian-Serb leaders by a German court for acts of genocide committed in Bosnia-Herzegovina; German trials of members of the Rwandan rebel group Democratic Forces for the Liberation of Rwanda; and the conviction of former Chadian leader Hissène Habré by the Extraordinary African Chambers in the Senegalese Courts on charges of crimes against humanity, torture, and war crimes.

Visit the website of Coalition member TRIAL International for a wide range of information on universal jurisdiction cases around the world.

Governments are responsible for prosecuting perpetrators of Rome Statute crimes committed on their territories or committed by their own nationals anywhere in the world.

The ICC is mandated to try those most responsible for the commission of grave crimes—this includes high political or military figures. Due to its global mandate and complementary relationship with national criminal justice systems, the Court often relies on states to themselves prosecute low-ranking (but often direct) perpetrators of grave crimes.

When states join the Rome Statute, they take on an obligation to undertake investigations and prosecutions of those responsible for grave crimes. 

See: Guinea, Colombia

ICC member states can challenge the admissibility of cases before the Court. When this happens, ICC judges must decide whether there are genuine national proceedings underway dealing with the crimes in question. If they determine that there are, the case before the ICC will likely be deemed inadmissible.

See Libya: Saif-Al-Islam Gaddafi, Abdullah Al-Senussi . Côte d’Ivoire: Laurent Gbagbo, Simone Gbagbo