Transfer of Cases under the Jurisprudence of the ICTR and Lessons Learnt for the ICC
Charles C. Jalloh and Alhagi Marong, eds., Promoting Accountability under International Law for Gross Human Rights Violations in Africa: Essays in Honour of Prosecutor Hassban Bubacar Jallow (Leiden/Boston: Martinus Nijhoff Brill, June 2015) at pp. 409-439
39 Pages Posted: 27 Jul 2015
Date Written: July 20, 2015
In this chapter, we examine the Rule 11bis jurisprudence of the International Criminal Tribunal for Rwanda (ICTR). Under that caselaw, which spurred significant legal reforms in Rwanda, the judges fleshed out the requirements that national criminal justice systems must meet in order to prosecute serious international crimes where they enjoy concurrent jurisdiction with an international tribunal that enjoyed primacy. Though rooted in fundamentally different assumptions, we suggest that there is convergence between the primacy principle of the ad-hoc tribunals, under which national jurisdictions may at any stage of their criminal procedures be formally requested to defer to the competence of the international court, and the principle of complementarity at the International Criminal Court ("ICC") which essentially reverses the top down relational model in favour of a bottom up approach. With the shift to complementarity, which governs at the permanent ICC, the international court is not entitled to step in to a domestic jurisdiction to investigate or prosecute the core atrocity crimes unless the State is inactive, unwilling and or unable to prosecute. We argue that a creative approach to the interpretation and application of the complementarity principle offers the ICC an opportunity to learn from the ICTR's rich Rule 11 bis experience. By taking a nuanced approach that articulates the minimum standards that domestic jurisdictions of situation countries must fulfill for cases to be rendered inadmissible at the permanent court in The Hague, the ICC could help "bring up" the standards in domestic courts and to also potentially stimulate deep legal reforms at the national level.
Keywords: ICTR, ICC, Rule 11 bis, complementarity principle, Article 17, ICC Statute, Charles Jalloh, Alhagi Marong, Essays in Honour of Prosecutor Jallow
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