Complementarity and Human Rights: A Litmus Test for the International Criminal Court

In spite of the establishment of the International Criminal Court (ICC or the Court), national criminal jurisdictions remain the principal actors expected to realize the basic aims of international criminal justice as articulated in the preamble of the Rome Statute (the Statute).' The basic aim is to put an end to impunity for the perpetration of "grave crimes," or "the most serious crimes of concern for the international community as a whole," and thus, contribute to the prevention of such crime, as well as guarantee lasting respect for and the enforcement of international justice In fact, the Statute reinforces a central role of national criminal justice institutions in that it does not merely reiterate a general competence of states to exercise criminal jurisdiction over such crimes, but stipulates that it is a duty of states to do so.' The drafters of the Statute took care to emphasize Research Fellow, Center for Political and Constitutional Studies, Madrid. 1. Rome Statute of the International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF. 183/9 [hereinafter Rome Statute]. The Statute entered into force on July 1, 2002. As of February 8, 2007, one hundred and five states are parties to the Statute. Fortyone states have signed, but not ratified the Statute. 2. See id. at pmbl, art. 5(1). 3. See id. 1 6. For a comprehensive account of the specific international legal foundations of this duty, see CHERIF B. BASSIOUNI, AUT DEDERE AUT JUDICARE: THE DUTY To EXTRADITE OR PROSECUTE IN INTERNATIONAL LAW (1995). Yet, note that the draft Statute for an International Criminal Court, Yearbook of the International Law Commission vol. II (Part Two) (1994), does not recognize a general duty of states to exercise criminal jurisdiction, but instead only refers to the principle aut dedere aut judicare. U.N. Int'l Law Comm'n, Draft Statute for an International Criminal Court, [1994] 2 Y.B. INT'L L. COMM'N 65, art. 54, U.N. Doc. A/49/10