The Nigerian Legal System and the Implementation of the Rome Statute Complementarity Principle

AbstractThe complementarity regime serves as a system to encourage and facilitate the compliance of states with their responsibility to investigate and prosecute international core crimes. It can contribute to the creation of an effective indirect enforcement mechanism among state parties to the Rome Statute; however, the current practice of the ICC falls short of materializing that. In the Ugandan case, the Ugandan referral displays a number of negative aspects regarding the ICC prosecutorial policy in practice. Firstly, Uganda does not seem to fulfil the "inability" criterion as stipulated in Article 17. Secondly, the policy of encouraging and seeking state referrals might lead to certain negative outcomes vis-à-vis fulfilling the purposes of the Rome Statute to end impunity. The presumption that state referrals could guarantee state cooperation is over simplistic. The ICC's position in the DRC situation raises other concerns, particularly with regard to the ICC's approach to cases of "inaction". Lubanga and Germain Katanga were already in the Congolese custody waiting trial for more serious crimes when the ICC requested their surrender considering that the DRC was not investigating the crimes the ICC has been investigating. The Congolese judicial system, at least in certain areas of the DRC (including Kinshasa) was "able and willing". Based on the above, the article concludes that the ICC Prosecutor's policy on the admissibility of "inactions" could encourage in theory national systems to prosecute core crimes; however, in reality it could lead to the opposite.

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Article 75 of the Rome Statute: Reparations and Their Implementation in the Dutch Legal System

Netherlands International Law Review ◽

10.1007/s40802-020-00171-6 ◽

2020 ◽

Vol 67 (2) ◽

pp. 211-232

Author(s):

Ruth A. van der Pol

Keyword(s):

Legal System ◽

Rome Statute

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Superior Responsibility in Estonian Criminal Law and its Compliance with International Law

Juridica International ◽

10.12697/ji.2019.28.08 ◽

2019 ◽

Vol 28 ◽

pp. 64-78

Author(s):

Andres Parmas

Keyword(s):

International Law ◽

Criminal Law ◽

Legal System ◽

Rome Statute ◽

International Criminal ◽

Customary International Law ◽

Regulatory Scheme ◽

Law System ◽

Superior Responsibility ◽

Domestic Law

If a domestic criminal-law system is to be equipped to operate in conformity with the underlying idea of complementarity that is among the International Criminal Court’s underpinnings, it is vital that, amongst other aspects of general principles of responsibility, the superior responsibility doctrine be transposed into domestic law properly. Accordingly, the paper deconstructs Art. 88 (1) of the Estonian Penal Code, which stipulates the superior responsibility concept in the Estonian legal system, for the purpose of assessing whether it exhibits compliance with customary international law on superior responsibility or Art. 28 of the Rome Statute. The analysis presented reveals considerable differences between the Estonian regulatory scheme and relevant international norms: it appears that there are several respects in which Estonian regulation does not meet the international standard and, hence, large lacunae are to be found in Estonian law on superior responsibility. For this reason, the article concludes with a recommendation that Estonian regulation of superior responsibility be complemented in such a way that it is rendered consistent with international law – specifically, with the requirements of Art. 28 of the Rome Statute – while simultaneously taking into consideration the demands stemming from Estonian criminal-law dogmatics, especially the guilt principle.

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The Referral of the Situation in Venezuela to the International Criminal Court: The Office of the Prosecutor Should Not Step In… Yet

Journal of International Humanitarian Legal Studies ◽

10.1163/18781527-bja10028 ◽

2021 ◽

Vol 12 (1) ◽

pp. 5-36

Author(s):

Ianiv Garfunkel

Keyword(s):

International Criminal Court ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Crimes Against Humanity ◽

Complementarity Principle ◽

Criminal Jurisdiction ◽

Preliminary Examination ◽

American States ◽

Extraterritorial Jurisdiction

Abstract On 26 September 2018, six American States Parties to the Rome Statute referred the Situation in Venezuela to the Office of the Prosecutor (‘OTP’) of the International Criminal Court, regarding crimes against humanity. Those States rested on Article 14 of the Rome Statute to proceed. That referral – namely, crimes committed outside the territory of the referring State(s) – was the second of its kind received by the icc in its more than 15-year working history. The otp is currently considering the referral under the so-called ‘Preliminary Examination’ stage, wherein the admissibility test is likely to be addressed within the complementarity principle, according to Article 17 of the Rome Statute. Despite the duty to exercise their criminal jurisdiction, as the Preamble to the Rome Statue stipulates, and the fact that those six American States recognize some sort of extraterritorial jurisdiction, those States remained inactive. What should the otp do when six democracies, who are able to act, do not even try to launch an investigation for crimes they have expressed concerns about, without providing an explanation for their inactivity? This article will analyse how the otp should deal with this referral in terms of the complementarity principle, having regard to the positive approach to complementarity. Accordingly, it will be argued that the Prosecutor should refrain from intervening until those States attempt to act and/or, in case of legal or factual inability, justify the referral.

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