Abstracts of Symposium Papers

Prof. Newton's paper will focus on the principle of "complementarity"—an intellectually simple concept that masks the deep philosophical and political difficulties that the International Criminal Court confronts as it evolves into a mature and effective institution. The Rome Statute nowhere defines the term "complementarity," but the plain text of Article 1 compels the conclusion that the ICC was intended to supplement the foundation of domestic punishment for violations of international norms, rather than supplant domestic prosecutions. The complementarity principle may well be the fulcrum upon which the weight of legitimacy and utility of the ICC will ultimately rest; and this principle is all the more important because it is designed to provide intellectual and political leverage to move non-States Party towards accession to the treaty. The Rome Statute was designed to curtail sovereign authority by displacing domestic trials only in "exceptional circumstances," and thus includes a comprehensive set of procedures designed to balance sovereign enforcement against unreasonable extension of ICC jurisdictional primacy. Nevertheless, the presumption in favor of domestic judicial action does not depend on strict compliance with the textual formulation for crimes articulated in the Rome Statute, or with charging those offenses using the precise terms and conditions outlined therein.

 

Complementarity is in theory an impartial, reliable, and de-politicized process for identifying the cases of international concern, and hence international jurisdiction. However, the thicket of subjective provisions designed to implement complementarity allows treaty opponents to argue that national justice systems are threatened with displacement at the hands of an unrestrained international prosecutor. Early decisions by the Office of the Prosecutor have demonstrated some political deftness, but progress could well be unraveled by a purist application of the admissibility regime. This article will discuss the negotiation history of the admissibility regime and assess its implementation in the early years of the Court. The article will conclude that the ICC should in fact defer to the good faith reasoning of domestic officials applying the law of the sovereign, even where the form of the domestic charges varies from the prosecutorial preferences of the Office of the Prosecutor or the Pre-Trial Chamber. The jurisprudence and practice of the ICC should not evolve to the point that domestic prosecutors make charging decisions in the faint hope that the ICC will accept the form of the charges.

Prof. Nollkaeper's paper will review the main legal avenues that are available within the international legal order to address the increasingly important problem of system criminality. The term "system criminality" refers to the phenomenon that international crimes—notably crimes against humanity, genocide and war crimes—often are caused by collective entities in which individual authors of these acts are embedded. The crimes committed during the ongoing armed conflicts in the Darfur area in Sudan provide a classic example. The Prosecutor of the ICC noted that the facts point to an ongoing pattern of crimes "committed with the mobilization of the whole state apparatus." This paper explains the concept of system criminality and provides an overview of the main legal responses to situations of system criminality.

International law establishes a platform that undergirds peaceful and respectful international relations. To fulfill this function, international law needs to maintain a balance between ideological pluralism and insistence on the inadmissibility of practices reprehended by an overlapping consensus of disparate belief systems. International penal processes, such as those established by the International Criminal Tribunals for the former Yugoslavia and Rwanda and the new International Criminal Court, are appropriate to the latter function. However, voluntaristic assertions by domestic courts of extraterritorial penal jurisdiction over acts of foreign states pose a danger to the balance that international law represents, thereby undermining the international legal order's indispensable functions of facilitating accommodation and precluding the strong from imposing what they unilaterally perceive as "justice." Thus, international criminal law, interpreted in light of the purposes and principles of the international system as a whole, should be read to establish only a relatively narrow exception to established constraints on extraterritorial prosecution of foreign-state agents.

Dr. Norberg's paper will focus on the contested crime of terrorism under international law. Unlike crimes against humanity or genocide, there is no wide consensus on a comprehensive definition of terrorism. In addition, terrorism is the subject of continuous preventive policing—and even military action—that is often at odds with fundamental liberties protected by both domestic and international law. The fragmentation and political inconsistency that characterize the struggle against terrorism indicate that states will not soon agree to qualify terrorism as an international crime. This paper will discuss the conundrum of the definition of terrorism and the implications to future developments of international criminal law.