Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals

Abstract

When the Security Council created the International Criminal Tribunal for the Former Yugoslavia (ICTY), several of its key members expressed reservations concerning the scope of the Tribunal's "'primacy," or priority over the jurisdiction of national courts. One aspect of that primacy is the obligation of states to cooperate with international investigations, arrests, and prosecutions, but so far the Security Council has done little to enforce this obligation against recalcitrant states. The lack of consensus on primacy limits the effectiveness of the ICTY as a whole. Current proposals for treaty language creating a permanent International Criminal Court (ICC) anticipate a more limited "complementary" jurisdiction for that institution, meaning that, in general, it will have jurisdiction over a case only when no national legal system can fairly and effectively deal with it. Some states nonetheless fear the jurisdiction of an independent ICC, and favor further limits, including complex state consent requirements and a formal role for the Security Council in initiating or blocking investigations and prosecutions. This Article argues, based upon the experience of the ICTY, that additional limits upon the ICC are unnecessary and ill-advised. Complementary international jurisdiction will be credible and effective only if there is an impartial, reliable, and non-political process for identifying important cases of international concern, evaluating the action of any national justice systems involved, and triggering the jurisdiction of the ICC when truly necessary. Since even the ICTY, with its primacy, depends upon the support of the Security Council, states have little reason to fear abuse of the ICC's lesser complementary jurisdiction. Complementarity will require the ICC to defer to national jurisdiction in most cases, and its defacto dependence upon the Security Council for enforcement and support will operate as an additional safeguard of legitimate state interests.