Complementarity in the Rome Statute and National Criminal Jurisdictions

Kleffner, Jann K.

doi:10.1093/acprof:oso/9780199238453.001.0001

Cited by 109 publications

(6 citation statements)

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“…Despite operating at different levels, the activity of the courts is connected, since in order to bring a case before a regional court it usually is necessary to exhaust available domestic remedies. Similarly, the permanent International Criminal Court (ICC), that has jurisdiction over war crimes, operates on the basis of the principle of complementarity and will investigate a situation and start cases if a State is unable or unwilling to do so by itself through its own domestic courts (ICC Statute, Articles 17 and 19;El Zeidy 2008;Kleffner 2008;Stahn and El Zeidy 2011;Nouwen 2013).…”

Section: Enforcing Ihlmentioning

confidence: 99%

Enforcement of International Humanitarian Law

Zyberi¹

2018

Precision Manufacturing

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This chapter provides a critical assessment of the enforcement system of international humanitarian law (IHL), also referred to as the law of armed conflict (LOAC) or jus in bello. The notion of enforcement should be distinguished from that of implementation, which is much broader, in that enforcement involves at least some degree of sanctioning for violations of IHL, which could encompass individual criminal responsibility or State responsibility and liability for reparations. After briefly discussing several factors that induce compliance with IHL, this chapter focuses on IHL enforcement at the three possible levels. At the domestic level, the chapter starts from the obligations imposed on States under the 1949 Geneva Conventions (GCs) and their two Additional Protocols of 1977 (AP1 and AP2), including the obligation to investigate and prosecute war crimes amounting to grave breaches. At the regional level, the chapter addresses the enforcement of IHL through the regional human rights systems, focusing on the three regional human rights courts, but also including relevant findings by the Inter-American Commission on Human Rights and the African Commission on Human and Peoples' Rights. At the international level, the chapter analyzes the enforcement of IHL by discussing briefly the mechanisms included under IHL treaties, including Protecting Powers, the ad hoc and the standing International Fact-Finding Commission (established through Article 90 of AP1), and the ICRC. The focus then shifts onto the main UN organs, including the Security Council, the General Assembly (and its subsidiary bodies, the Human Rights Council and the International Law Commission), and the International Court of Justice (ICJ). Another type of enforcement mechanisms addressed here includes international criminal courts and tribunals. Finally, the chapter addresses briefly the role of non-State actors, focusing on non-State armed groups (NSAGs) and nongovernmental organizations (NGOs). Keywords International humanitarian law-IHL-Law of armed conflict-Jus in bello-Enforcement-United Nations-Geneva Conventions and Additional Protocols-International Committee of the Red Cross forces, international legal adjudication, good offices and mediation, media publicity, penal and disciplinary measures, demands for reparations in respect of violations, and reprisals by the aggrieved State (UK Ministry of Defence 2004, p. 412-413). The notion of enforcement should be distinguished from that of implementation, which is much broader, in that enforcement involves at least some degree or type of sanctioning for violations of IHL, which ranges from public condemnation of violations to individual criminal responsibility or State responsibility (Sassòli 2002, p. 401-434) and liability for reparations. Section VI of the 2005 ICRC study on customary IHL is entitled "Implementation" and includes five chapters, namely, Chapter 40 "Compliance with International Humanitarian Law," Chapter 41 "Enforcement of International Humanitarian Law," Chapter 42 "Responsibility...

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Section: Enforcing Ihlmentioning

confidence: 99%

Enforcement of International Humanitarian Law

Zyberi¹

2018

Precision Manufacturing

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“…An important feature of the ICC's jurisdiction is the principle of complementarity, which requires the ICC prosecutor to defer to national courts, unless the national court remains unwilling or unable to investigate and prosecute in a genuine manner. Under this principle, the ICC is expected to provide technical assistance to national courts and to exercise its discretionary power in strict accordance with its Rules of Procedure and Evidence (see Kleffner 2008;Roach 2013;Roach 2011).…”

Section: Moral Accountability and Justicementioning

confidence: 99%

Why moral commitments matter: mapping the ethics and politics of responsible and accountable global governance

Roach

2015

Cambridge Review of International Affairs

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Much of the scholarly attention on commitments in international relations (IR) has remained narrowly framed, focusing on how states and other actors make strictly strategic calculations to comply with international norms and/or treaties. The trouble with this rationalist approach is that it oversimplifies the moral basis of commitments. This article offers a deeper analysis of this moral basis as well as the positive ethical values that help to direct and shape the content of the moral commitments of agents in IR. The article argues that the ethical values of sincerity, empathy and sacrifice play a dynamic yet understudied meta-level role in helping one to interpret and explain the transformative dimensions of moral commitments in IR. The article first develops a meta-level theoretical approach to commitment in international theory and then applies this approach to two particular emergent discourses in international politics: the responsibility to protect and moral criminal accountability.

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“…Complementarity emerged relatively early in the negotiating process of the ICC Statute. Moreover, the details of the complementarity regime proved particularly contentious throughout the course of the negotiations (Kleffner 2008). States argued that the unique characteristics of the ICC as a permanent institution with prospective jurisdiction that extended to crimes committed in the territory or by nationals of States Parties had to be balanced against state sovereignty and state interest.…”

Section: The Interational Criminal Court Inherits the Mantlementioning

confidence: 99%

Gendered Harms and their Interface with International Criminal Law

Aoláin

2014

International Feminist Journal of Politics

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G e n d e r e d H a r m s a n d t h e i r I n t e r f a c e w i t h I n t e r n a t i o n a l C r i m i n a l L a w NORMS, CHALLENGES AND DOMESTICATION † FIONNUALA NÍ AOLÁ INMany feminists have questioned the extent to which the law can ever effectively deter violence against women given the ways in which the law and criminal justice systems often act to reinforce deeply sexist assumptions about women, their sexual and social identities and their relation to the social (male) world. While acknowledging law's ineffectiveness in fundamentally reordering social relations, a number of scholars and policy makers believe that it is an institution that can be used to make substantive gains for women. The agreement by states on the establishment of an International Criminal Court (ICC), combined with a Statute that augments international legal prohibitions on violence against women, has given traction to optimistic views on international criminal law's capacity to proactively address female specific harms. Moreover, there is confidence that transformative international legal norms will, in turn, enable and support domestic law's capacity to advance accountability for violence against women. In that context, this article considers the potential for proactive and gender-centered complementarity under the ICC system. Based on a systematic review of a wide range of domestic legislation enacted by States Parties following signature and ratification of the ICC Statute, the analysis considers the significance and ramifications of domestic legal changes for the operation of the ICC complementarity system. Detailed consideration is given to ways in which the ICC complementarity regime might be operationalized to ensure a gendered understanding of the "unwilling and unable" standard contained in Article 17 of the ICC † Parts of this article have been previously presented at the Institute of Advanced Studies

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Complementarity in the Rome Statute and National Criminal Jurisdictions

Cited by 109 publications

References 0 publications

Enforcement of International Humanitarian Law

Enforcement of International Humanitarian Law

Why moral commitments matter: mapping the ethics and politics of responsible and accountable global governance

Gendered Harms and their Interface with International Criminal Law

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