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FROM PRIMACY TO COMPLEMENTARITY AND BACKWARDS: (RE)-VISITING RULE 11 BIS OF THE AD HOC TRIBUNALS

Published online by Cambridge University Press:  09 May 2008

Mohamed M El Zeidy
Mohamed M El Zeidy
Affiliation:
Legal Officer, Pre-Trial Division, The International Criminal Court; Judge, Egyptian Ministry of Justice (2005–2007);
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Abstract

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Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 57 , Issue 2 , April 2008 , pp. 403 - 415
Copyright
Copyright © 2008 British Institute of International and Comparative Law

I. Introduction

The International Criminal Tribunal for the Former Yugoslavia (ICTY) was created ad hoc by a decision of the United Nations Security Council to deal with the unique situation in the former Yugoslavia.Footnote 1 Another ad hoc tribunal, the International Criminal Tribunal for Rwanda (ICTR), was created to deal with a similarly disturbing situation in that country.Footnote 2 Article 9 of the ICTY Statute Footnote 3 and Article 8Footnote 4 of the ICTR Statute prescribe the relationship between the tribunals and national courts. The establishment of the tribunals was based on the principle of concurrent jurisdiction.

However, since both tribunals have a special mission, that of contributing to the restoration and maintenance of peace in the Former Yugoslavia and Rwanda, they needed more than simple concurrent jurisdiction. Hence, the Statutes grant them primacy over the jurisdiction of national courts.Footnote 5 The extraordinary jurisdictional priority granted to the ad hoc tribunals is justified by the ‘compelling international humanitarian interests involved’,Footnote 6 and by the Security Council's determination that both situations constituted a threat to international peace and security.Footnote 7 But invoking such primacy is subject to the satisfaction of one or more of the situations defined under Rule 9 of the Rules of Procedure and Evidence of the ICTY and ICTR.Footnote 8 Accordingly, at any stage of the procedure, the international tribunals may formally request the national courts to defer to their competence in accordance with the terms of the Statutes and their Rules.Footnote 9 This stands in contradistinction to the complementarity regime chosen for the International Criminal Court's Statute (Rome Statute complementarity model), which provides domestic courts with the priority to act, unless a State shows unwillingness or inability to proceed.Footnote 10

Nonetheless, the two regimes established by these different institutions are based on a common ground, namely concurrence with the jurisdiction of national courts. While the mechanism established by the ad hoc tribunals is based on vertical concurrent jurisdiction strengthened with primacy, the International Criminal Court (ICC) is based on the inverse vertical concurrent jurisdiction that provides national courts vis-à-vis the ICC with such primacy to investigate situations, prosecute and try cases— known as complementarity.Footnote 11 Complementarity as embedded in the current ICC Statute also reflects the ‘jurisdictional relationship’ between the ICC and domestic courts.Footnote 12 It organizes the exercise of such ‘jurisdictional relationship’ through a system of admissibility of situations or cases.Footnote 13 Situations or cases that are deemed inadmissible are therefore, the primary responsibility of national courts.Footnote 14 It follows that the Rome Statute system of complementarity is based on the idea of division of labour between national and international jurisdictions.

This article provides a new dimension to the traditional understanding of primacy and complementarity. It argues that the practice of the ad hoc tribunals under the principle of primacy actually reflects a different relationship between domestic and international jurisdictions that is far from being a strict primacy as traditionally recognised. The established link between the two-tier jurisdictions may be better defined as complementary. The tribunals' practice does not seem to establish only a traditional form of complementarity rather than it shaped at least three distinct models of complementarity that may stand alongside the current 1998 Rome Statute model as summarised in the following section.

II. From Primacy to Complementarity

Primacy as traditionally known seeks to entrust the ad hoc tribunal with the upper hand over any case that is under its jurisdiction. As argued above, the Prosecutor of the tribunal may request deferral of a case at any stage of the proceedings. But, practice has proved that in some instances, although the tribunal could have invoked its primacy proper, to solve the conflict of jurisdiction over a specific case, it has sometimes chosen a different practice, namely to defer to the jurisdiction of national courts on the basis of a division of labour. This has been exercised within the framework of the prosecutorial discretionary powers. While such a practice is not strictly primacy, it may create a relationship between national courts and the tribunal that is more close to being complementarity. This complementary relationship stands alongside the existing mechanism of primacy. Although the complementarity scheme established under the umbrella of prosecutorial discretionary powers shares with the Rome Statute complementarity model the idea of division of tasks, the technicalities underlying the application of both systems are different, rendering each of them a distinct model of complementarity.

The existence of a plan for a ‘completion strategy’ and the amendment of Rule 11 bis of the Rules of Procedure and Evidence reflect a new angle in the understanding of primacy and complementarity. Rule 11 bis as it currently stands permits the tribunals to refer back mid- and lower level cases that are already before their jurisdiction to national courts, thereby entrusting them with the primary responsibility to investigate, prosecute and try a referred case. This decision of referral may be revoked by the Referral Bench if the State fails to conduct proper proceedings. While the initial decision to bring the case before the tribunal is clearly one of primacy, the subsequent decision to send back the case to the national authorities providing them with the primary jurisdiction to proceed is more close to a practice of complementarity based on co-operation and the distribution of tasks—similar in idea to the model created under the exercise of prosecutorial discretion—but different in terms of application as well as the philosophical foundations, thus forming a second model of its own. This model seems to be inspired to some extent by an earlier one created by the Nuremberg International Military Tribunal (IMT).

A third model appears in the decision to revoke an order for referral of a case to a State due to its failure to ‘diligently prosecute’ or provide a ‘fair trial’. Similar to the Rome Statute complementarity model, the third model provides national courts as opposed to the tribunals with primary jurisdiction over referred cases. Such primacy of domestic courts is subject to a test of genuine proceedings. Failure this test would still trigger the jurisdiction of the tribunal to take up the proceedings. This model, although different, is the closest to the current Rome Statute complementarity model as it seems to apply the ‘diligent prosecution’ and ‘fair trial’ as criteria that act to restrict the exercise of jurisdiction of the tribunal over a case that has already been referred to a national court. As the philosophical foundations underlying all of these models and the technicalities of their application are different as explored further in this article, complementarity may emerge in different forms creating various overlapping models. Nonetheless, these models are based on one common idea, that is, the distribution of powers between national and international jurisdictions.

III. Primacy vis-à-vis three Complementarity Models

Some scholars argue that the reason for entrusting the ad hoc tribunals with ‘primacy’ was mainly to remedy the apparent lack of will and ability to conduct fair trials before domestic courts,Footnote 15 in a sense resolving ‘conflicts with national jurisdictions that might shelter an offender from genuine prosecution’.Footnote 16 In Tadić, the ICTY Appeals Chamber affirmed this meaning:

[W]hen an international tribunal such as the present one is created, it must be endowed with primacy over national courts. Otherwise, human nature being what it is, there would be a perennial danger of international crimes being characterized as ‘ordinary crimes’…, or proceedings being ‘designed to shield the accused’, or cases not being diligently prosecuted. If not effectively countered by the principle of primacy, any one of those strategies might be used to defeat the very purpose of the creation of an international criminal jurisdiction, to the benefit of the very people whom it has been designed to prosecute (emphasis added).Footnote 17

In practice, ‘primacy’ seemed to have been applied for a different purpose. Neither, in Tadić,Footnote 18Mrkšić Footnote 19 and Re: The Republic of Macedonia Footnote 20 before the ICTY nor in Musema,Footnote 21Bagosora,Footnote 22 or in the Radio Televission Libre des Mille Collins SARL Footnote 23 before the ICTR, the Prosecutors requested deferral on the basis that the proceedings before national courts were ‘sham’. Instead, in all of these cases, the Prosecutor invoked Rule 9(iii) of the Rules of Procedure and Evidence of the ICTY and ICTR, which states that the investigations or criminal proceedings undertaken by the national authorities of the State are ‘closely related and otherwise involve factual or legal questions which may have implications for the Prosecutor's investigations or prosecutions’. But, in Tadić, it was a common understanding that the tribunal, at the time, was anxious for a case to try. As one commentator puts it, at this early stage in the tribunal's activities, the Prosecutor was ‘desperate’ for a case to prosecute ‘were Tadić to have been arrested ten years later, when the tribunal was suffering under a crushing caseload as well as intense pressure from the Security Council to conclude its operations, it is highly unlikely that the Prosecutor would have meddled with German attempts to bring him to justice’.Footnote 24

While in these cases, the ICTY and ICTR Prosecutors exercised absolute primacy, in other cases they refrained from doing so. In these other cases, the Prosecutors acted under the umbrella of their discretionary powers and entrusted national courts with the primary responsibility to act through a decision to defer to their jurisdiction. This practice reflects a sort of concurrence and complementarity that functions along side the existing system of primacy, and resulted in the division of labour on the basis of co-operation between the tribunals and domestic jurisdictions.

Although in Karamira Prosecutor Goldstone deferred to the Rwandese courts only after a squabble with the Government,Footnote 25 certainly nothing would have stopped him from insisting upon a trial before the ICTR on the basis of primacy,Footnote 26 if he still favoured doing so. Indeed, when Colonel Théoneste Bagosora was arrested in Cameroon on 11 March 1996, Prosecutor Goldstone insisted that he stand trial before the ICTR, despite the extradition requests from Rwanda and Belgium.Footnote 27 In the Djajić and Jorgić cases investigated by the German authorities, the ICTY Prosecutor also deferred to the jurisdiction of national courts,Footnote 28 on the basis of mutual agreement and division of responsibilities. Explaining the underlying philosophy, the Prosecutor said:

The Djajic and Jorgic cases were initiated and investigated by the German authorities, who consulted with the Office of the Prosecutor of the International Tribunal. The Prosecutor assessed that it was not appropriate to seek a deferral of these cases, and the decision was made that they continue to be prosecuted by the German authorities. There is on-going co-operation between the Prosecutor and the German authorities on these and other cases.Footnote 29

Thus, the practice of the ad hoc tribunals was not confined to the application of strict primacy rather than occasionally a clear complementarity approach has been followed based on co-operation—extending the nature of jurisdiction underpinning the ad hoc tribunals and reframing a new model of complementarity. Although the complementarity scheme established under this practice shares with the Rome Statute complementarity model the idea of distribution of responsibilities, the two systems are slightly different. The main difference lies in the fact that the Rome Statute complementarity model relies in its application on a system of admissibility that filters the type of situations or cases that can come before the ICC. By contrast, the system created under the practice of the ad hoc tribunals does not embody such a mechanism for the selection of cases. Instead, the system contemplated is part of the prosecutorial policy to use his or her discretionary powers in selecting the sort of cases that warrant trial before the tribunal.

This trend has been reinforced in the tribunals' ‘completion strategies’.Footnote 30 According to Judge Jorda, President of the ICTY at the time, the strategy encompassed two major components, namely to prosecute before the tribunal ‘those presumed responsible for crimes which most seriously violate international public order and to give cases of lesser significance to the national courts.’Footnote 31 The strategies, as referred to in Security Council Resolutions 1503 (2003),Footnote 32 1534 (2004)Footnote 33 target the completion of trial activities at first instance by the end of December 2008 and to finish the appeals by the end of 2010. This process entailed some amendments to the Rules of Procedure and Evidence (Rules).Footnote 34

As to the ICTY, Rule 11 bis has been amended four times since its adoption in 1997.Footnote 35 According to these amendments, Rule 11 bis (A) permits the tribunal to refer a case to the ‘national authorities’ of either the territorial State,Footnote 36 the State where the accused was arrested,Footnote 37 or to a State ‘having jurisdiction and being willing and adequately prepared to accept such a case’.Footnote 38 The tribunal may order the referral acting under its proprio motu powers or at the request of the Prosecutor.Footnote 39

In reaching any such decision to refer a case pursuant to paragraph (A), the Referral Bench, shall also ‘consider the gravity of the crimes’ as well as the ‘level of responsibility of the accused’;Footnote 40 thus, ensuring that only those bearing the greatest responsibility shall stand trial before the tribunal in accordance with paragraphs 4 and 5 of Security Council Resolution 1534.Footnote 41 This decision may be revoked by the Referral Bench, upon the Prosecutor's request, ‘at any time before the accused is found guilty or acquitted by a national court’.Footnote 42 With an apparent technical exception,Footnote 43 the ICTR has a corresponding provision that sets out the exact requirements found in Rule 11 bis of the ICTY Rules.Footnote 44

The absolute primacy of the ad hoc tribunals experienced a noticeable change with the amendment of Rule 11 bis on 10 June 2004. Rule 11 bis as it currently stands represents a reversed approach to the practice of primacy. The tribunals only deal with the most serious cases that involve those who bear the greatest responsibility, while the remaining cases of lesser magnitude are to be sent back to the jurisdiction of national courts to be their primary responsibility, a system that reminds us of the complementary relationship established between the (IMT) and national courts subsequent to World War II.Footnote 45 The IMT was only to try the ‘major war criminals, whose offences have no particular geographical localization’. The remaining would ‘be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these librated countries and of free governments’.Footnote 46 This creates a clear system of complementarity that relies on effective co-operationFootnote 47 on the basis of distribution of functions and the level of responsibility of the accused.Footnote 48

But there are substantial differences in terms of application as well as the underlying philosophical foundations between the IMT and the ad hoc tribunals. As to the application, in case of the complementarity model created within the ambit of the prosecutorial discretionary powers, complementarity is backed up with primacy. At any stage of the proceedings, even after the Prosecutor's deferral to the jurisdiction of national courts, he or she may still use his or her discretion and invoke primacy to assert jurisdiction over the case in question. Under Rule 11 bis, the idea of complementarity is not the outcome of the prosecutorial discretion to leave cases already before domestic courts to be judged by them. Instead, it emerges from the decision to share the burden with national courts through the referral of some cases that are already before the tribunals' jurisdiction. Complementarity under this model is also backed with primacy to revoke an order of referral in certain situations as discussed below.

By contrast, in the case of the IMT, there was no need to provide the tribunal with powers of this kind since the trials both at the international as well as the national level were conducted under the control of the Allies.Footnote 49 Thus, the system established was no more than a mere division of labour to achieve a common goal that is, prosecuting the enemy powers through a two-level system. There are also differences in the philosophical foundations. In a system predicated on prosecutorial discretion, it is clear that any decision taken either to defer jurisdiction to a national court or to refrain from invoking primacy relates to the interests of justice within its broader meaning. Although this might be the same in case of Rule 11 bis of the Rules of Procedure and Evidence of the ad hoc tribunals, the philosophy underlying the latter is much broader. It should not be forgotten that Rule 11 bis was amended precisely to serve a broader goal, that is, to assist the tribunals to meet their mandates through a plan for a ‘completion strategy’.

On the contrary, in the case of the IMT, the idea of dealing with certain offenders internationally, while dealing with others domestically was apparently for a different reason. Quoting the language used in the Moscow Declaration that ‘[G]ermans who take part in the wholesale shooting of [Polish] officers or in the execution of French, Dutch … will be brought back to the scene of their crimes and judged on the spot by the peoples whom they outraged’, indicates that the choice was rooted in moral and political rather than legal grounds.Footnote 50

Accordingly, the practice of the Prosecutors of the ad hoc tribunals and the IMT establishes two overlapping yet distinct models of complementarity. Although in case of Rule 11 bis there is also a political dimension involved, the fact that the final purpose is different makes the complementarity idea created under Rule 11 bis still distinct from the one reflected under the system of the IMT. Although the various models share the idea of distribution of responsibilities, the Rome Statute complementarity model remains different.

In terms of application, the Rome Statute complementarity model applies the ‘unwilling’ and ‘unable’ tests coupled with detailed criteria that act as a restriction on admissibility, thus ensuring that only a limited number of situations or cases of certain gravity may be tried before the ICC. On the contrary, neither the models established under Rule 11 bis as well as the discretionary powers of the Prosecutors of the ad hoc tribunals nor the one reflected under the system of the IMT require such conditions. Even the underlying philosophy is different. The Rome Statute complementarity model was mainly introduced to preserve States' sovereignty as well as to restrict the Court's action to very well defined exceptional situations.

While Rule 11 bis (F) apparently retains the absolute primacy of the tribunal through a decision to ‘revoke’ the order and request ‘deferral’ of the case, Rule 11 bis (A)(iii) suggests an additional conclusion, namely the emergence of a mechanism that is more than just one of absolute primacy. It is apparent that, once the State which has received the case on the basis that it was ‘being willing and adequately prepared to accept’ such responsibly shows failure to properly proceed with the case, the tribunal may step in to remove the case from the jurisdiction of domestic courts in accordance with Rule 11 bis (F). Although this provision does not mention the phrase ‘failure to proceed’, it is implicit from reading the two Rules together that the Trial Chamber or the Referral Bench would not step in pursuant to Rule 11 bis (F), unless there is clear deficiency in the proceedings conducted before domestic courts. Any different interpretation given to these provisions would render the system intended for the purpose of the completion strategy ‘inoperative’.Footnote 51

The conditions, which permit the tribunal's interference with domestic proceedings in case of failure, are not mentioned in Rule 11 bis (F). Yet, the jurisprudence of the ICTY and ICTR is instructive in relation to this matter. In the Stankovic case, the ICTY Referral Bench stated that ‘Rules 11 bis (D) (iv) and 11 bis (F) serve as remedies against a failure of the relevant State to diligently prosecute a referred case or conduct a fair trial of the accused in a referred case’.Footnote 52 The ICTY Referral Bench upheld this finding in the Norac et al,Footnote 53Mejakic et al,Footnote 54Jankovic,Footnote 55Kovačević,Footnote 56 and Trbić decisions.Footnote 57 When the Jankovic decision was appealed, the Chamber reached the same conclusion, stating that ‘the Referral Bench did not err in its finding that ‘Rules 11bis (D) (iv) and 11bis (F) serve as precautions against a failure to diligently prosecute a referred case or conduct a fair trial’.Footnote 58 Thus, it could be argued that the lack of diligent prosecution Footnote 59 and a fair trial are the main conditions that trigger the tribunal's powers to ‘revoke the order and make a formal request of deferral’. Yet, neither the Rules nor the jurisprudence of the ad hoc tribunals clearly define ‘diligent prosecution’, or spell out the criteria for its satisfaction.Footnote 60

Rule 11bis (A) (iii) and Rule 11 bis (F), in light of the jurisprudence of the tribunals, create a third model of complementarity comparable in principle to the Rome Statute complementarity model. Once the tribunal determines that a case has not been ‘diligently prosecuted’ before domestic courts, it is competent to proceed with the trial of that case. This scenario corresponds to some extent to the system contemplated in the Rome Statute complementarity model whereby if a State manifests unwillingness or inability to proceed with a situation or case, the ICC is empowered to step in and proceed with that situation or case before its jurisdiction.

While the two systems overlap in terms of the general triggering method,Footnote 61 and might share some of the philosophical foundations such as entrusting the primary responsibility for investigation, prosecution, and trial to the State,Footnote 62 drawing the balance between the cases to be tried internationally with the limited resources at hand,Footnote 63 and ensuring that only cases of extreme gravity are being dealt with at the international level, while those of lesser magnitude are the responsibility of domestic courts, both finally maintain two different objectives.

Save for the similarities, complementarity proper as reflected in the 1998 Rome Statute was not introduced for the purpose of a ‘completion strategy’ that aims to send away cases already before the Court. The aim was, inter alia, to encourage States to enact domestic legislations in order to comply with their duty to exercise domestic jurisdiction.Footnote 64 The system of complementarity was also created to ensure that the ICC is only a facility for States to be used when needed,Footnote 65 thus respecting States' sovereign rights.Footnote 66 Thus, the complementarity schemes established by the practice of the ad hoc tribunals might stand as distinct models of their own along side the traditional Rome Statute complementarity model.

IV. Conclusion

For more than a decade, the classical view has been that the ad hoc tribunals are only vested with primacy proper. This is a misconception, as practice has demonstrated that the tribunals occasionally have had to set aside the idea of invoking strict primacy in the face of national courts. Instead, the Prosecutors of these tribunals found it practical to exercise a sort of complementarity in order to create a dialogue of understanding and cooperation that serves the main goal of narrowing, if not closing, the impunity gap.

The completion strategy plan backed by Security Council Resolutions 1503 (2003) and 1534 (2004) has even strengthened this idea, since the core of the practice merely relied on the idea of national courts complementing the tribunals' mandate. National courts will do what the tribunals would not have been able to do by 2008, if the entire case load remained their primary responsibility. Rule 11 bis has been amended in this direction. The experience of the ad hoc tribunals also shows that the notions of primacy and complementarity are not mutually exclusive rather than they may be reconciled to function alongside one another. This is mirrored in Rule 11 bis, which although creates a system of complementarity it does not rule out the tribunals' existing primacy.Footnote 67 A similar conclusion, yet in a different context, was reached by the ICTR Trial Chamber I in the Ntuyahaga decision on the Prosecutor's motion to withdraw the indictment:

[A]lthough it accepts the submissions of the Prosecutor and the Belgian Government inasmuch as the Tribunal does not have exclusive jurisdiction over crimes included in its mandate and that its criminal proceedings are complementary to those of national jurisdictions, it wishes to underscore that, in its opinion, and as submitted by the Defence, the principle of concurrent jurisdiction as provided in paragraph (1) of Article 8 of the Statute, which recognizes the complementary nature of the judicial work performed by the Tribunal and national courts, must be read together with the provisions of paragraph 2 of said Article 8, which confers upon the Tribunal primacy over the national courts of all States.Footnote 68

Early in its activities, the ICTR realized and acknowledged that the system created by Article 8 of its Statute not only embodies an absolute primacy, but also an implied complementarity.

Although different models reflecting the complementary relationship between domestic and international jurisdictions have been invoked during the practice of the ad hoc tribunals, these notions of complementarity are slightly different than the traditional complementarity model reflected in the current ICC Statute. Accordingly, there seems to be various models of complementarity that may stand alongside one another,Footnote 69 which suggests that complementarity is not an absolute principle but rather that it is a notion that is subject to variations depending on the mode of its application.

References

1 SC Res 827(1993), adopted 25 May 1993 [hereinafter ICTY].

2 SC Res 955(1994), S/RES/955 (1994), adopted 8 Nov 1994 [hereinafter ICTR].

3 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, SC Res 827/1993, reprinted in: (1993) ILM 1192, Art 9.

Art 9 of the ICTY Statute stipulates:

  1. 1.

    1. The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991.

  2. 2.

    2. The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunals.

4 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in Rwanda, SC Res 955/1994, reprinted in: (1994) ILM 1598, Art 8.

Art 8 of the ICTR Statute stipulates:

  1. 1.

    1. The International Tribunal for Rwanda and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens for such violations committed in the territory of neighboring States, between 1 January 1994 and 31 December 1994.

  2. 2.

    2. The International Tribunal for Rwanda shall have primacy over the national courts of all States. At any stage of the procedure, the International Tribunal for Rwanda may formally request national courts to defer to its competence in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal for Rwanda.

5 For a thorough overview, see AG Karibi-White, ‘The Twin Ad hoc Tribunals and Primacy Over National Courts’ (1999) 9 Criminal Law Forum 55.

6 BS Brown, ‘Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals’ (1998) 23 Yale Journal of International Law 383, 394–95.

7 Charter of the United Nations, adopted 26 June 1945, entered into force 24 Oct 1945, as amended by GA Res 1991 (XVIII) (17 Dec 1963), entered into force 31 Aug 1965 (557 UNTS 119), Art 39 [hereinafter UN Charter].

8 See ICTY, Rule 9; ICTR Rule 9.

9 ICTY Statute, Art 9(2); ICTR Statute, Art 8(2); See also Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808(1993), UN SCOR, 48th Sess, UN Doc S/25704 (1993) [hereinafter Secretary-General's Report on the Former Yugoslavia] paras 64–65. In this respect the Secretary General emphasized that it was not the intention of the Security Council to preclude or prevent the exercise of jurisdiction by national courts with respect to the acts committed; For further discussion about concurrent jurisdiction, see M Cherif Bassiouni, The Law of the International Criminal Tribunal for the Former Yugoslavia (Irvington-on-Hudson, Transnational Publishers, New York, 1996) 306–20; V Morris and MP Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol I (Irvington-on-Hudson, Transnational Publishers, New York, 1995) 136–44.

10 Rome Statute, Art 17. On the principle of complementarity, see MM El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice, (Martinus Nijhoff, Leiden/Boston, forthcoming 2008) [hereinafter The Principle of Complementarity]; JT Holmes, ‘Complementarity: National Courts Versus the ICC’ in A Cassese et al (eds), The Rome Statute of the International Criminal Court, Vol I (Oxford University Press, Oxford, 2002) 667 ff; JT Holmes, ‘The Principle of Complementarity’ in RS Lee (ed), The International Criminal Court: The Making of the Rome Statute, Issues. Negotiations. Results. (Kluwer Law International, The Hague/London/Boston, 1999) 41 ff; S Williams, ‘Issues of Admissibility’ in O Triffterer (ed), Commentary on the Rome Statute: Observers' Notes, Article by Article, (Nomos Verlagsgesellschaft, Baden-Baden, 1999) 383 ff; MA Newton, ‘Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court’ (2001) 167 Military Law Review 20; M Benzing, ‘The Complementarity Regime of the International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight Against Impunity’ (2003) 7 Max Planck Yearbook of United Nations Law 591; MM El Zeidy, ‘The Principle of Complementarity: A New Machinery to Implement International Criminal Law’ (2002) 23 Michigan Journal of International Law 869.

11 While complementarity can never exist without there is a concurrent jurisdiction, the opposite is not true. The existence of concurrent jurisdiction does not always mean that the relationship is complementary. On this observation, see A Klip, ‘Complementarity and Concurrent Jurisdiction’ (2004) 19 Nouvelles Études Pénals 173.

12 Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN GAOR, 51st Sess, Vol 1, Supp No 22, UN Doc A/51/22 (1996), para 153 [hereinafter 1996 Preparatory Committee Report, Vol I].

13 Rome Statute, Art 17.

14 For example, Rome Statute, preamble para 6: ‘Recalling that it is the duty of every State to exercise its criminal jurisdiction’; Rome Statute, Art 17; See also the decision of the Paris Court of Appeals in the Kadhafi case where the Court invoked ICC preamble para 6 as a legal basis that justified a trial before French courts. Cour D'appel de Paris, chamber d'accusation, 2 eme section, Arrêt du 20/10/2000, in F Poirat, ‘Immunité de Jurisdiction pénale du chef d'Eatat étranger en exercise et régle coutumiére devant le Juge Judiciare’ (2001) 105 Revue Générale de Droit International Public 473, 476.

15 A Cassese, International Criminal Law (Oxford University Press, Oxford, 2003) 349; D Shraga and R Zacklin, ‘The International Criminal Tribunal for the Former Yugoslavia’ (1994) 5 European Journal of International Law 360, 371.

16 WA Schabas, The UN International Criminal Tribunal, The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge University Press, Cambridge, 2006) 126.

17 Prosecutor v Duško Tadić, Case No (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 Oct 1995) para 58.

18 Prosecutor v Duško Tadić, Case No (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 Oct 1995) para 52.

19 Prosecutor v Mrkšić, Šlijvančanin and Radić, Case No (IT-95-13-R61), Decision on the Proposal of the Prosecutor for a Request to the Federal Republic of Yugoslavia (Serbia and Montenegro) to Defer the Pending Investigations and Criminal Proceedings to the Tribunal (10 Dec 1998). Although the Prosecutor relied not only on Rule 9 (iii) but also on Rule 9(ii), the fact that he invoked Rule 9(ii) before even proving that the actual proceedings initiated were deemed partial or not independent makes it clear that the request for deferral was mainly based on other reasons. On this point see the statement made by the Prosecutor, which supports this assertion. ‘[T]he continuing refusal of the Federal Republic of Yugoslavia (Serbia and Montenegro) to surrender the said accused indicates that the proceedings initiated in its territory would be neither impartial not independent and would be designed to shield the accused from his international criminal responsibility’; ibid p 3. Based on this statement it is clear that the proceedings were not neither impartial nor independent as asserted rather than the Prosecutor mistakenly considered the refusal of the State to surrender equivalent to a failure to act properly before domestic courts.

20 Prosecutor v Re: Republic Of Macedonia, Case No (IT-02-55-MISC.6), Decision on the Prosecutor's Request for Deferral and Motion for Order to the Former Yugoslav Republic of Macedonia (4 Oct 2002).

21 Prosecutor v Alfred Musema, Case No (ICTR-96-5-D), Decision on the Formal Request for Deferral Presented by the Prosecutor (12 Mar 1996).

22 Prosecutor v Théoneste Bagosora, Case No (ICTR-96-7-D), Decision on the Application by the Prosecutor for a Formal Request for Deferral (17 May 1996).

23 Prosecutor v Radio Television Libre des Mille Collines SARL, Case No (ICTR-96-6-D), Decision on the Formal Request for Deferral Presented by the Prosecutor (12 Mar 1996).

24 WA Schabas, An Introduction to the International Criminal Court (2nd edn, Cambridge University Press, Cambridge, 2004) 125–26.

25 MH Morris, ‘The Trials of Concurrent Jurisdiction: The Case of Rwanda’ (1997) 7 Duke Journal of Comparative and International Law 349, 365, n 91.

26 Froduald Karamira was tried before Rwandan courts, convicted and executed. See Ministére Public v Karamira, Jugement du 14 Février 1997 du tribunal de 1 è instance de Kigali, available at <http://www.icrc.org>.

27 P Akhavan, ‘The International Criminal Tribunal for Rwanda: The Politics and Pragmatic of Punishment’ (1996) 90 AJIL 501, 509.

28 There are also some cases that were tried before national courts, although they could have been dealt with before the ICTY. See for example Public Prosecutor v Djajić, No 20/96, Supreme Court of Bavaria, 3d Strafsenat, (23 May 1997) (summarized in CJM Safferling (1998) 92 AJIL 528); In Re G, Military Tribunal, Division 1, Lausanne Switzerland, (18 Apr 1997) (summarized in Andreas R Ziegler, ibid 78). While these cases shows a clear exercise of the concurrent jurisdiction provided by the ICTY Statute to national courts, it also reflects that there exists a sort of complementary relationship between the two jurisdictions based mutual cooperation and division of tasks. In the Re G case although the accused was acquitted as the military tribunal failed to prove beyond reasonable doubt that the accused was in Keraterm and Omarska at the ‘time of the crimes’, there is no evidence that the ICTY Prosecutor requested deferral to the jurisdiction of the ICTY. This acknowledges the exercise of another form of complementarity based on the distribution of responsibilities.

29 SD Murphy, ‘Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ (1999) 93 AJIL 57, 65 (citing Justice Arbour's Statement Regarding War Crimes Related Trials Currently Underway in Germany, ICTY Doc CC/PIO/171-E, 19 March 1997).

30 More on the ‘completion strategies’, DA Mundis, ‘Completing the Mandates of the Ad hoc International Criminal Tribunals: Lessons from the Nuremberg Process? (2004) 28 Fordham International Law Journal 591; DA Mundis, ‘The Judicial Effects of the “Completion Strategies” on the Ad hoc International Criminal Tribunals’ (2005) 99 AJIL 142; D Raab, ‘Evaluating the ICTY and its Completion Strategy: Efforts to Achieve Accountability for War Crimes and their Tribunal’ (2005) 3 Journal of International Criminal Justice 82.

31 Address by His Excellency, Judge Claude Jorda, President of the International Criminal Tribunal for the Former Yugoslavia, to the United Nations Security Council on 23 July 2002, Press Release The Hague, 26 July 2002 (JDH/P.I.S./690-e, available at <http://www.un.org/icty/pressreal/p690-e.htm>. As one commentator has mentioned, ‘The experience of the ICTY and ICTR has shown that international tribunals are only able to try a very small fraction of the perpetrators. Moreover, they are often too detached from local communities to respond effectively to the needs and expectations of victims’ group and local societies. These limitations have encouraged the search for alternative and additional frameworks of justice, such as the transfer of cases involving mid-level perpetrators to domestic courts.' C Stahn, ‘The Geometry of Transitional Justice; Choices of Institutional Design’ (2005) 18 Leiden Journal of International Law 425, 449.

32 SC Res 1503 (2003) UN Doc S/RES/1503.

33 SC Res 1534 (2004) UN Doc S/RES/1534.

34 Accord, T Meron, ‘Reflection on the Prosecution of War Crimes by International Tribunals’ (2006) 100 AJIL 551, 563.

35 ICTY RPE, Rule 11 bis adopted 12 November 1997, revised 30 September 2002, amended 10 June, 28 July 2004, and 11 February 2005. The last three amendments that have taken place on 10 June 2004, 28 July 2004, and 11 February 2005 respectively are of great significance to implementation of the completion strategy. On account of the circumstances for such amendments, see M Bohlander, ‘Referring an Indictment from the ICTY and ICTR to another Court— Rule 11 Bis and the Consequences for the Law of Extradition’ (2006) 55 ICLQ 219, 220–22.

36 ICTY RPE, Rule 11 bis (A) (i).

37 ICTY RPE, Rule 11 bis (A) (ii).

38 ICTY RPE, Rule 11 bis (A) (iii). Here the reference to ‘jurisdiction’ entails the meaning within the widest sense. As the ICTR Appeals Chamber in the recent Bagaragaza case has stated: ‘The interpretation of Rule 11 bis (A) (iii) should rely on that definition which requires ratione materiae, ratione personae, ratione loci, ratione temporis. When confirming an indictment, the confirming judge must find that each of those requirements is satisfied in order for the tribunal to have jurisdiction. In this case, the universal jurisdiction referred to in the submissions of the Kingdom of Norway will permit the prosecution of the Accused (ratione personae) for his acts allegedly committed in Rwanda (ratione loci) in 1994 (ratione temporis). The only aspect of jurisdiction which would not be covered by Norwegian law is the ratione materiae. The submission that Norwegian criminal law does not provide for the crime of genocide directly affects the finding of jurisdiction ratione materiae, where the legal qualification of the facts alleged in the confirmed Indictment is made’. Prosecutor v Michel Bagaragaza, Case No (ICTR-2005-86-R11bis), Decision on the Prosecution Motion for Referral to the Kingdom of Norway, Rule 11 bis of the Rules of Procedure and Evidence (19 May 2006) paras 12–13.

39 ICTY RPE, Rule 11 bis (B).

40 ICTY RPE, Rule 11 bis (C). Here, the meaning tends to limit the examination of the gravity of the crime and level of responsibility to the specific case against the accused. As the Appeals Chamber in the Jankovic case has concluded, ‘Nothing in Rule 11 bis of the Rules indicates that the Referral Bench is obliged to consider the gravity of the crimes charged and the level of responsibility of accused in other cases in order to make its referral decision. Although the Referral Bench may be guided by a comparison with an indictment in another case, it does not commit an error of law if it bases its decision on referral merely on the individual circumstances of the case before it’. See Prosecutor v Gojko Jankovic, Case No (IT-96-23/2-AR11bis.2), Decision on Rule 11 bis Referral (15 Nov 2005) para 26.

41 SC Res 1534 (2004) UN Doc S/Res/1534, paras 4–5.

42 ICTY RPE, Rule 11 bis (F).

43 This language is lacking in the corresponding provision under the ICTR Rules. Yet, from the beginning of its work unlike the ICTY, the ICTR was focused on the senior leaders who bear the greatest responsibility for the atrocities committed in Rwanda. Thus, the idea of completion strategy and the call for trying only the senior leaders before the tribunals as reflected in Security Council Resolutions 1503 and 1534 was no more than a reiteration of something that has been done for years. In the same vein, see E Møse, ‘Main Achievements of the ICTR’ (2005) 3 Journal of International Criminal Justice 920, 932.

44 ICTR RPE, Rule 11 bis.

45 More on the theory of complementarity between the IMT and domestic courts, see El Zeidy (n 10) 874–76.

46 The Triparte Conference at Moscow, 19–30 Oct 1943, reprinted in International Conciliation, No 395, pp 599–605 (1943); also London Agreement of 8 Aug 1945, reprinted in 1 Trial of Major War Criminals Before the International Military Tribunal 8, pp 8–9 (1947) ‘[G]ermans who take part in wholesale shooting of [Polish] officers or in the execution of French, Dutch … or have shared in slaughters inflicted on the people of Poland or in territories of the Soviet Union … will be brought back to the scene of their crimes and judged on the spot by the peoples whom they have outraged’. See Moscow Declaration (n 46).

47 For similar conclusion concerning the system of complementarity established by the IMT, see O Triffterer, ‘Preliminary Remarks: The Permanent International Criminal Court— Ideal and Reality’ in O Triffterer (ed), (n 10) 38. In this context, ‘the agreement between the four major powers fighting at that time against Germany, and those nineteen States, which in addition signed the Nuremberg Statute, to guarantee uniformity with an international court besides Nuremberg and Tokyo. Rather, a far-reaching complementarity existed. On both levels, the prosecution and sentencing were based on a practical division of labour’; ibid.

48 Although it is not clear whether those major war criminals would still had to stand trial before the IMT if their crimes have been geographically determined. In other words, it is not clear whether the major war criminals stood trial before the IMT also on the basis of their level of criminal responsibility or merely, because their crimes have no ‘geographical localization’.

49 In the same vein, Q Wright, ‘The Law of the Nuremberg Trial’ (1974) 41 AJIL 38, 39, 45. Generally on the Nuremberg Trials, T Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (Knopf, New York, 1992); RK Woetzel, The Nuremberg Trials in International Law (Stevens & Sons, London, 1960).

50 This does not deny the fact that sending Germans to the ‘scene of their crimes’ implies that the well established principle of territorial jurisdiction was a legal foundation for the establishment of competence ratione loci.

51 As the Inter-American Court of Human Right stated that the object and purpose of the American Convention ‘is the effective protection of human rights…[it] must, therefore, be interpreted so as to give it its full meaning and to enable the system … to attain its ‘appropriate effects’'. See Fairén Garbi and Solís Corrales Case, Preliminary Objections, Judgment of 26/06/1987, Inter-AmCtHR (SerC) No 2, para 35. Of vital importance is to prevent any restrictions of interpretation that would render the system in question ‘inoperative’. See Constantine et al v Trinidad and Tobago Case, Preliminary Objections, Judgment of 1/09/ 2001, Inter-AmCtHR (SerC) No 82, para 73.

52 Prosecutor v Radovan Stankovic, Case No (IT-96-23/2-PT), Decision on Referral of Case Under Rule 11 bis Partly Confidential and Ex Parte (17 May 2005) para 93.

53 Prosecutor v Rahim Ademi and Mirko Norac, Case No (IT-04-78-PT), Decision for Referral to the Authorities of the Republic of Croatia Pursuant to Rule 11 bis (14 Sept 2005) para 57.

54 Prosecutor v Zeljko Mejakic, Momcilo Gruban, Dusan Fustar, Dusko Knezevic, Case No (IT-02-65-PT), Decision on Prosecutor's Motion for Referral of a Case pursuant to Rule 11 Bis (20 Jul 2005) para 134.

55 Prosecutor v Gojko Jankovic, Case No (IT-96-23/2-PT), Decision on Referral of Case under Rule 11 Bis (22 Jul 2005) paras 102–3.

56 Prosecutor v Vladimir Kovačević, Case No (IT-01-42/2-I), Decision on Referral of Case pursuant to Rule 11 Bis With Confidential and Partly Ex Parte Annexes (17 Nov 2006) paras 80–81(noting that the non compliance with the requirements of a fair trial would also trigger the power of the Tribunal to revoke an order of referral).

57 Prosecutor v Milorad Trbić, Case No (IT-05-88/1-PT), Decision on Referral of Case under Rule 11 Bis with Confidential Annex (27 Apr 2007) para 44.

58 Prosecutor v Gojko Jankovic, Case No (IT-96-23/2-AR11bis.2), Appeals Decision on Rule 11 bis (15 Nov 2005) para 56.

59 The term ‘diligent prosecution’ was proposed during the 1996 Preparatory Committee negotiations concerning the establishment of an International Criminal Court. In the context of discussions of the admissibility provision earlier proposed by the 1994 ILC draft statute (Art 35), some delegations thought that the term should be used as a ‘qualification’ for the quality of the national proceedings. Yet, the inclusion of the term was finally rejected, as some delegations thought that the term is ‘too subjective’. See 1996 Preparatory Committee Report, Vol I (n 412) para 164. However, the term was not adopted as being ‘too subjective’. See JT Holmes (n 10) 674.

60 Although the jurisprudence of the ICTY for example has restricted its suggestion in relation to revoking an order of referral to a failure of the State to conduct a ‘diligent prosecution’ or a ‘fair trial’, by reading the conditions set out in Rule 9, one could argue that they could be reconciled within the entire system in question. In determining whether a referred case has been ‘diligently prosecuted’, the Prosecutor may therefore take these conditions listed under Rule 9 into assessment as being part of the mechanism established.

61 Arguably, the phrase ‘diligently prosecute a referred case or conduct a fair trial of the accused’ used by the ICTY is a catch clause that captures any sort of failure to proceed on behalf of the State. Accordingly, it might cover even admissibility situations such as those mentioned in the text of Art 17 of the current ICC Statute.

62 In the Stankovic decision, the ICTY Referral Bench supported this conclusion when stated: ‘[R]referral of a case implies that the proceedings against an accused become the primary responsibility of the authorities, including the investigative, prosecutorial, and judicial organs, of the state concerned’. [Once the State proves] ‘failure to diligently prosecute a referred case or conduct a fair trial … Rule 11 bis (F) enables the Referral Bench, at the request of the Prosecutor, to revoke a referral order at any time before an accused is found guilty or acquitted by a national court, in which event Rule 11 bis (G) makes provision to enable the re-transfer of an accused to the seat of this Tribunal.’ Prosecutor v Radovan Stankovic, Case No (IT-96-23/2-PT), Decision on Referral of Case under Rule 11 bis Partly Confidential and Ex Parte (17 May 2005) para 93. The Referral Bench used identical words in the Jankovic decision. See Prosecutor v Gojko Jankovic, Case No (IT-96-23/2-PT), Decision on Referral of Case under Rule 11 Bis (22 July 2005) para 102.

63 In the same vein, WW Burke-White, ‘A Community of Courts: Toward a System of International Criminal law Enforcement’ (2003) 24 Michigan Journal of International Law 1, 10.

64 See generally, WW Burke-White, ‘Complementarity in Practice: The International Criminal Court as Part of a System of Multi-level Global Governance in the Democratic Republic of Congo’ (2005) 18 Leiden Journal of International Law 557, 568–69; JJ Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’ (2003) 1 Journal of International Criminal Justice 86, 87.

65 Report of the International Law Commission on the Work of its Forty-Fourth Session (4 May–24 July 1992), Annex Report of the Working Group on the Question of an International Criminal Jurisdiction, UN Doc A/47/10, 1992 YILC, Vol II, Part Two, p 64; Report of the International Law Commission on the Work of its Forty-Sixth Session (2 May–22 July 1994), with Annex Draft Statute for an International Criminal Court, UN Doc A/49/10, 1994 YILC Vol II, Part Two, p 21.

66 Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th Sess, Supp No 22, UN Doc A/50/22 (1995), paras 29–51.

67 See ICTY Rule 11 bis (F), which stipulates that when the Referral Bench decides to revoke ‘an order and make formal request of deferral’, this would be in accordance with Rule 10. Rule 10 by its role refers to Rule 9. Thus, Rule 11 bis (F) makes it clear that Rules 9 and 10 that govern the exercise of the traditional primacy of the tribunal are still applicable.

68 Prosecutor v Bernard Ntuyahaga, Case No (ICTR-98-40-T), Decision on the Prosecutor's Motion to Withdraw the Indictment (18 March 1999).

69 On account of further models and the development of this theory, see El Zeidy, The Principle of Complementarity (n 10).