A Sentence-Based Theory of Complementarity

by Kevin Jon Heller

I have just posted a new essay — my first since finishing the NMT book! — on SSRN.  Here is the abstract:

Scholars have long debated to what extent the Rome Statute’s principle of complementarity permits states to prosecute war crimes, crimes against humanity, and acts of genocide as ordinary crimes such as rape and murder instead of as international crimes. Two positions dominate the discourse, what I call the “hard mirror thesis” and the “soft mirror thesis.” Proponents of the hard mirror thesis argue that such prosecutions never satisfy the principle of complementarity, because the mere act of prosecuting an international crime as an ordinary crime indicates that the state is unwilling or unable to genuinely prosecute. Proponents of the soft mirror thesis, by contrast, accept that prosecuting an international crime as an ordinary crime does not necessarily mean that the state is unwilling or unable to prosecute, but nevertheless insist that states should prosecute international crimes as international crimes whenever possible, because such prosecutions better serve the goals of the Rome Statute. I challenge both theses in the essay and defend an alternative theory of complementarity that focuses exclusively on sentence. In particular, I argue that any national prosecution of an ordinary crime should satisfy the principle of complementarity as long as it results in a sentence equal to, or longer than, the sentence the perpetrator would receive from the ICC.

As always, comments and criticisms most welcome!


3 Responses

  1. Response…
    good point.  Some states need to create adequate legislation in order to prosecute, e.g., genocide and crimes against humanity.  For example, the U.S. has no statute allowing prosecution of crimes against humanity as such and the genocide statute is completely inadequate. e.g., http://ssrn.com/abstract=1481827  — Obama: take care of this problem!
    Nonetheless, until such states comply with their relevant treaty obligations (e.g., to enact adequate legislation if such is required for domestic prosecution) the community might tolerate prosecutions under legislation addressing more ordinary crimes.
    Note that Israel convicted Eichmann of, among other crimes, “crimes against the Jewish people,” although there is no such crime as such under international law.  Did it matter that what was being prosecuted under the domestic statute was actually genocide?  The only issue at that time was whether or not genocide was a crime under customary international law during the Holocaust.  If so, no problem was found to exist with respect to Israel’s naming an international crime something different than what it is called under international law, as long as what was covered was a crime under international law.

  2. This is a very practical question, albeit treated in a very academic and heavy way (the outcome and suggestions however, seem to be practice-oriented again; and yes, I have fast-forwarded the very loooooong essay).

    Apparently, the was completed before the current decision of the ICC’s pre-trial chamber II on 30th May 2011, on the Kenyan government’s inadmissibility application. I guess I’ll have to eat my way through the whole text now patiently, it seems to be worth it :-).

  3. Kevin,
    Who even knew there was such a debate? I really do need to keep up on my current reading.

    I apologise if I missed how you addressed the issue I am about to raise as a scanned your paper, but I suggest a focus on the average sentences might be too simplistic. Any given case might have a range of factors leading to the ‘appropriate’ sentence. Should a person be subject to the risk of a second prosecution merely because his or her sentencing factors took that person outside of the average sentence for that type of crime? Perhaps a better approach would be to look at a sentencing range, much like appeal courts do when considering whether a sentence was manifestly inadequate or excessive. Was the sentence awarded in that particular case one which no reasonable sentence tribunal could have arrived at?
    As an interesting footnote, you might like to add how, based on what I can glean from the media reporting, the recent court-martial of the commandos in Australia seemed to run into difficulty because ‘ordinary’ crimes (eg, manslaughter) were charged and not war crime specific charges.

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