Revised Version of Complementarity Essay on SSRN

by Kevin Jon Heller

I have posted a substantially revised version of my essay “A Sentence-Based Theory of Complementarity” on SSRN.  The essay is appearing in two different forms.  The long version (23,000 words) — the one I’ve posted — is forthcoming in Volume 53 of the Harvard International Law Journal.  The short version (7,000 words), which focuses on the new theory of complementarity I defend, will appear as a chapter of the Ashgate Research Companion to International Criminal Law: Critical Perspectives, which is being edited by Bill Schabas, Niamh Hayes, Maria Varaki, and Yvonne McDermott.  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.

One Response

  1. Dr. Heller,

    In your essay you address the “important objection” surrounding your theory – the fact that that the ICC has yet to complete a trial. In your paper you write: “To begin with, when faced with an admissibility challenge, the Court could determine the applicable statutory maximum for the international crime – 30 years if the crime was neither extremely grave nor the defendant particularly heinous, life  otherwise –  and use that as its baseline for comparison. Alternatively, the Court could apply the average sentence for the international crime at the ICTY and ICTR, which have sentenced more than 100 defendants for a variety of international crimes”.

    However the underlying assumption is that one CAN find an international criminal sentencing average. Since the creation of the ICTY and ICTR, judges have been handing down sentences with neither a robust system of sentencing procedure nor any coherent theoretical vision of why we are sentencing international criminals as we do. Judges rather exercise ad hoc discretion in making sentencing determinations, with the result that there is little consistency between sentences at the ICTY. At the ICC, Rule 145 of the Rules of Procedure and Evidence calls for the penalty to reflect “the culpability of the convicted” by balancing all relevant factors, including the extent of damage caused, the harm to the victims, the nature of the unlawful behavior, the means used to execute the crime, the degree of participation, as well as other factors. The Rome statute and procedures are silent on the one area that is most important both for your theory to work and for the accused criminal himself- what the appropriate penalties should be for particular crimes. Every scholar has a basic idea that proportionality is a laudable goal, but there is nothing in either the Rome Statute itself or the Rules of Procedure and Evidence to guide judges in making sentencing determinations for international crimes.

    Therefore I’m not sure how once can fully implement your theory while I completely agree with the overall analysis that both the hard and soft mirror arguments are flawed.

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