Complementarity In Criminal Justice

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Chapter 3: Complementarity Section 1: Introduction The legal framework for complementarity as referenced in the Rome Statute is set out in art. 1, 17 and 20 of the Statute. The principle of complementarity in the Rome Statute is one of the highlights of the Statute as it regulates and addresses a very profound question that usually arises in situations where one judicial entity fulfils functions, that can be fulfilled or in actual fact fulfilled by another judicial entity. The question that arises in this regard revolves around the governance of the mutual relationship and interaction, between both entities. This question of institutional relations equally applies to the relationship and interaction between, international and internationalized…show more content…
It is mainly used in other fields of public international law, like international investment law for instance, where it is also referred to as the electa una via principle. According to this principle, potential claimants have a choice between domestic and international courts or tribunals. A selection of one tribunal automatically excludes the possibility of recourse of the same claim to any other competent court or tribunal. The implication appears to be that if one court has assumed jurisdiction over a given case the other court, irrespective of what the outcome of that case is, will exercise self-restraint and will never preside over the same case. Basically, borrowing from the maxim of theological hermeneutics, the court that is first to assume jurisdiction is the ‘Alpha and Omega’the first and final adjudicator. The inference from this model is that adjudication is contingent on the discretion of the party possessing the right to make a claim. In essence, the jurisdiction of the court, international or domestic, is triggered by a complaint. Mindful of this reality it is evident why such model is not practiced in the field of international criminal law where compulsory jurisdiction is triggered not by a complaint but rather by the occurrence of a situation over which the court has jurisdiction and has been notified. As will be demonstrated…show more content…
This typology of institution interaction is bifurcated in that two alternate principles delineate the shared competence. Within the context of the first principle the exercise of jurisdiction by a domestic court is made contingent on the absent of adjudication by an international legal entity. Such, was the case, as regards the relationship between the ICTY and ICTR and the domestic criminal jurisdictions of both Rwanda and Yugoslavia. The statutes of both tribunal stipulate that the tribunals shall share, with national courts, concurrent jurisdiction to prosecute alleged perpetrators of core crimes, but the tribunals shall have primacy over the respective national courts. This concept is now widely known as the principle of primacy. Under this system both tribunals reserve the right to request from domestic courts cases deemed of having sufficient gravity to be tried by the tribunals. Drawing from this mode of interaction it suffices to conclude that the jurisdiction of the concerned domestic courts was in principle conditional on an absence of adjudication by the international

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