¹ SC Res 827(1993), adopted 25 May 1993 [hereinafter ICTY].

² SC Res 955(1994), S/RES/955 (1994), adopted 8 Nov 1994 [hereinafter ICTR].

³ Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, SC Res 827/1993, reprinted in: (1993) ILM 1192, Art 9.

Art 9 of the ICTY Statute stipulates:

1. 1.

   1. The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991.

2. 2.

   2. The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunals.

⁴ Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in Rwanda, SC Res 955/1994, reprinted in: (1994) ILM 1598, Art 8.

Art 8 of the ICTR Statute stipulates:

1. 1.

   1. The International Tribunal for Rwanda and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens for such violations committed in the territory of neighboring States, between 1 January 1994 and 31 December 1994.

2. 2.

   2. The International Tribunal for Rwanda shall have primacy over the national courts of all States. At any stage of the procedure, the International Tribunal for Rwanda may formally request national courts to defer to its competence in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal for Rwanda.

⁵ For a thorough overview, see AG Karibi-White, ‘The Twin Ad hoc Tribunals and Primacy Over National Courts’ (1999) 9 Criminal Law Forum 55.

⁶ BS Brown, ‘Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals’ (1998) 23 Yale Journal of International Law 383, 394–95.

⁷ Charter of the United Nations, adopted 26 June 1945, entered into force 24 Oct 1945, as amended by GA Res 1991 (XVIII) (17 Dec 1963), entered into force 31 Aug 1965 (557 UNTS 119), Art 39 [hereinafter UN Charter].

⁸ See ICTY, Rule 9; ICTR Rule 9.

⁹ ICTY Statute, Art 9(2); ICTR Statute, Art 8(2); See also Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808(1993), UN SCOR, 48th Sess, UN Doc S/25704 (1993) [hereinafter Secretary-General's Report on the Former Yugoslavia] paras 64–65. In this respect the Secretary General emphasized that it was not the intention of the Security Council to preclude or prevent the exercise of jurisdiction by national courts with respect to the acts committed; For further discussion about concurrent jurisdiction, see M Cherif Bassiouni, The Law of the International Criminal Tribunal for the Former Yugoslavia (Irvington-on-Hudson, Transnational Publishers, New York, 1996) 306–20; V Morris and MP Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol I (Irvington-on-Hudson, Transnational Publishers, New York, 1995) 136–44.

¹⁰ Rome Statute, Art 17. On the principle of complementarity, see MM El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice, (Martinus Nijhoff, Leiden/Boston, forthcoming 2008) [hereinafter The Principle of Complementarity]; JT Holmes, ‘Complementarity: National Courts Versus the ICC’ in A Cassese et al (eds), The Rome Statute of the International Criminal Court, Vol I (Oxford University Press, Oxford, 2002) 667 ff; JT Holmes, ‘The Principle of Complementarity’ in RS Lee (ed), The International Criminal Court: The Making of the Rome Statute, Issues. Negotiations. Results. (Kluwer Law International, The Hague/London/Boston, 1999) 41 ff; S Williams, ‘Issues of Admissibility’ in O Triffterer (ed), Commentary on the Rome Statute: Observers' Notes, Article by Article, (Nomos Verlagsgesellschaft, Baden-Baden, 1999) 383 ff; MA Newton, ‘Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court’ (2001) 167 Military Law Review 20; M Benzing, ‘The Complementarity Regime of the International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight Against Impunity’ (2003) 7 Max Planck Yearbook of United Nations Law 591; MM El Zeidy, ‘The Principle of Complementarity: A New Machinery to Implement International Criminal Law’ (2002) 23 Michigan Journal of International Law 869.

¹¹ While complementarity can never exist without there is a concurrent jurisdiction, the opposite is not true. The existence of concurrent jurisdiction does not always mean that the relationship is complementary. On this observation, see A Klip, ‘Complementarity and Concurrent Jurisdiction’ (2004) 19 Nouvelles Études Pénals 173.

¹² Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN GAOR, 51st Sess, Vol 1, Supp No 22, UN Doc A/51/22 (1996), para 153 [hereinafter 1996 Preparatory Committee Report, Vol I].

¹³ Rome Statute, Art 17.

¹⁴ For example, Rome Statute, preamble para 6: ‘Recalling that it is the duty of every State to exercise its criminal jurisdiction’; Rome Statute, Art 17; See also the decision of the Paris Court of Appeals in the Kadhafi case where the Court invoked ICC preamble para 6 as a legal basis that justified a trial before French courts. Cour D'appel de Paris, chamber d'accusation, 2 eme section, Arrêt du 20/10/2000, in F Poirat, ‘Immunité de Jurisdiction pénale du chef d'Eatat étranger en exercise et régle coutumiére devant le Juge Judiciare’ (2001) 105 Revue Générale de Droit International Public 473, 476.

¹⁵ A Cassese, International Criminal Law (Oxford University Press, Oxford, 2003) 349; D Shraga and R Zacklin, ‘The International Criminal Tribunal for the Former Yugoslavia’ (1994) 5 European Journal of International Law 360, 371.

¹⁶ WA Schabas, The UN International Criminal Tribunal, The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge University Press, Cambridge, 2006) 126.

¹⁷ Prosecutor v Duško Tadić, Case No (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 Oct 1995) para 58.

¹⁸ Prosecutor v Duško Tadić, Case No (IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 Oct 1995) para 52.

¹⁹ Prosecutor v Mrkšić, Šlijvančanin and Radić, Case No (IT-95-13-R61), Decision on the Proposal of the Prosecutor for a Request to the Federal Republic of Yugoslavia (Serbia and Montenegro) to Defer the Pending Investigations and Criminal Proceedings to the Tribunal (10 Dec 1998). Although the Prosecutor relied not only on Rule 9 (iii) but also on Rule 9(ii), the fact that he invoked Rule 9(ii) before even proving that the actual proceedings initiated were deemed partial or not independent makes it clear that the request for deferral was mainly based on other reasons. On this point see the statement made by the Prosecutor, which supports this assertion. ‘[T]he continuing refusal of the Federal Republic of Yugoslavia (Serbia and Montenegro) to surrender the said accused indicates that the proceedings initiated in its territory would be neither impartial not independent and would be designed to shield the accused from his international criminal responsibility’; ibid p 3. Based on this statement it is clear that the proceedings were not neither impartial nor independent as asserted rather than the Prosecutor mistakenly considered the refusal of the State to surrender equivalent to a failure to act properly before domestic courts.

²⁰ Prosecutor v Re: Republic Of Macedonia, Case No (IT-02-55-MISC.6), Decision on the Prosecutor's Request for Deferral and Motion for Order to the Former Yugoslav Republic of Macedonia (4 Oct 2002).

²¹ Prosecutor v Alfred Musema, Case No (ICTR-96-5-D), Decision on the Formal Request for Deferral Presented by the Prosecutor (12 Mar 1996).

²² Prosecutor v Théoneste Bagosora, Case No (ICTR-96-7-D), Decision on the Application by the Prosecutor for a Formal Request for Deferral (17 May 1996).

²³ Prosecutor v Radio Television Libre des Mille Collines SARL, Case No (ICTR-96-6-D), Decision on the Formal Request for Deferral Presented by the Prosecutor (12 Mar 1996).

²⁴ WA Schabas, An Introduction to the International Criminal Court (2nd edn, Cambridge University Press, Cambridge, 2004) 125–26.

²⁵ MH Morris, ‘The Trials of Concurrent Jurisdiction: The Case of Rwanda’ (1997) 7 Duke Journal of Comparative and International Law 349, 365, n 91.

²⁶ Froduald Karamira was tried before Rwandan courts, convicted and executed. See Ministére Public v Karamira, Jugement du 14 Février 1997 du tribunal de 1 è instance de Kigali, available at <http://www.icrc.org>.

²⁷ P Akhavan, ‘The International Criminal Tribunal for Rwanda: The Politics and Pragmatic of Punishment’ (1996) 90 AJIL 501, 509.

²⁸ There are also some cases that were tried before national courts, although they could have been dealt with before the ICTY. See for example Public Prosecutor v Djajić, No 20/96, Supreme Court of Bavaria, 3d Strafsenat, (23 May 1997) (summarized in CJM Safferling (1998) 92 AJIL 528); In Re G, Military Tribunal, Division 1, Lausanne Switzerland, (18 Apr 1997) (summarized in Andreas R Ziegler, ibid 78). While these cases shows a clear exercise of the concurrent jurisdiction provided by the ICTY Statute to national courts, it also reflects that there exists a sort of complementary relationship between the two jurisdictions based mutual cooperation and division of tasks. In the Re G case although the accused was acquitted as the military tribunal failed to prove beyond reasonable doubt that the accused was in Keraterm and Omarska at the ‘time of the crimes’, there is no evidence that the ICTY Prosecutor requested deferral to the jurisdiction of the ICTY. This acknowledges the exercise of another form of complementarity based on the distribution of responsibilities.

²⁹ SD Murphy, ‘Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ (1999) 93 AJIL 57, 65 (citing Justice Arbour's Statement Regarding War Crimes Related Trials Currently Underway in Germany, ICTY Doc CC/PIO/171-E, 19 March 1997).

³⁰ More on the ‘completion strategies’, DA Mundis, ‘Completing the Mandates of the Ad hoc International Criminal Tribunals: Lessons from the Nuremberg Process? (2004) 28 Fordham International Law Journal 591; DA Mundis, ‘The Judicial Effects of the “Completion Strategies” on the Ad hoc International Criminal Tribunals’ (2005) 99 AJIL 142; D Raab, ‘Evaluating the ICTY and its Completion Strategy: Efforts to Achieve Accountability for War Crimes and their Tribunal’ (2005) 3 Journal of International Criminal Justice 82.

³¹ Address by His Excellency, Judge Claude Jorda, President of the International Criminal Tribunal for the Former Yugoslavia, to the United Nations Security Council on 23 July 2002, Press Release The Hague, 26 July 2002 (JDH/P.I.S./690-e, available at <http://www.un.org/icty/pressreal/p690-e.htm>. As one commentator has mentioned, ‘The experience of the ICTY and ICTR has shown that international tribunals are only able to try a very small fraction of the perpetrators. Moreover, they are often too detached from local communities to respond effectively to the needs and expectations of victims’ group and local societies. These limitations have encouraged the search for alternative and additional frameworks of justice, such as the transfer of cases involving mid-level perpetrators to domestic courts.' C Stahn, ‘The Geometry of Transitional Justice; Choices of Institutional Design’ (2005) 18 Leiden Journal of International Law 425, 449.

³² SC Res 1503 (2003) UN Doc S/RES/1503.

³³ SC Res 1534 (2004) UN Doc S/RES/1534.

³⁴ Accord, T Meron, ‘Reflection on the Prosecution of War Crimes by International Tribunals’ (2006) 100 AJIL 551, 563.

³⁵ ICTY RPE, Rule 11 bis adopted 12 November 1997, revised 30 September 2002, amended 10 June, 28 July 2004, and 11 February 2005. The last three amendments that have taken place on 10 June 2004, 28 July 2004, and 11 February 2005 respectively are of great significance to implementation of the completion strategy. On account of the circumstances for such amendments, see M Bohlander, ‘Referring an Indictment from the ICTY and ICTR to another Court— Rule 11 Bis and the Consequences for the Law of Extradition’ (2006) 55 ICLQ 219, 220–22.

³⁶ ICTY RPE, Rule 11 bis (A) (i).

³⁷ ICTY RPE, Rule 11 bis (A) (ii).

³⁸ ICTY RPE, Rule 11 bis (A) (iii). Here the reference to ‘jurisdiction’ entails the meaning within the widest sense. As the ICTR Appeals Chamber in the recent Bagaragaza case has stated: ‘The interpretation of Rule 11 bis (A) (iii) should rely on that definition which requires ratione materiae, ratione personae, ratione loci, ratione temporis. When confirming an indictment, the confirming judge must find that each of those requirements is satisfied in order for the tribunal to have jurisdiction. In this case, the universal jurisdiction referred to in the submissions of the Kingdom of Norway will permit the prosecution of the Accused (ratione personae) for his acts allegedly committed in Rwanda (ratione loci) in 1994 (ratione temporis). The only aspect of jurisdiction which would not be covered by Norwegian law is the ratione materiae. The submission that Norwegian criminal law does not provide for the crime of genocide directly affects the finding of jurisdiction ratione materiae, where the legal qualification of the facts alleged in the confirmed Indictment is made’. Prosecutor v Michel Bagaragaza, Case No (ICTR-2005-86-R11bis), Decision on the Prosecution Motion for Referral to the Kingdom of Norway, Rule 11 bis of the Rules of Procedure and Evidence (19 May 2006) paras 12–13.

³⁹ ICTY RPE, Rule 11 bis (B).

⁴⁰ ICTY RPE, Rule 11 bis (C). Here, the meaning tends to limit the examination of the gravity of the crime and level of responsibility to the specific case against the accused. As the Appeals Chamber in the Jankovic case has concluded, ‘Nothing in Rule 11 bis of the Rules indicates that the Referral Bench is obliged to consider the gravity of the crimes charged and the level of responsibility of accused in other cases in order to make its referral decision. Although the Referral Bench may be guided by a comparison with an indictment in another case, it does not commit an error of law if it bases its decision on referral merely on the individual circumstances of the case before it’. See Prosecutor v Gojko Jankovic, Case No (IT-96-23/2-AR11bis.2), Decision on Rule 11 bis Referral (15 Nov 2005) para 26.

⁴¹ SC Res 1534 (2004) UN Doc S/Res/1534, paras 4–5.

⁴² ICTY RPE, Rule 11 bis (F).

⁴³ This language is lacking in the corresponding provision under the ICTR Rules. Yet, from the beginning of its work unlike the ICTY, the ICTR was focused on the senior leaders who bear the greatest responsibility for the atrocities committed in Rwanda. Thus, the idea of completion strategy and the call for trying only the senior leaders before the tribunals as reflected in Security Council Resolutions 1503 and 1534 was no more than a reiteration of something that has been done for years. In the same vein, see E Møse, ‘Main Achievements of the ICTR’ (2005) 3 Journal of International Criminal Justice 920, 932.

⁴⁴ ICTR RPE, Rule 11 bis.

⁴⁵ More on the theory of complementarity between the IMT and domestic courts, see El Zeidy (n 10) 874–76.

⁴⁶ The Triparte Conference at Moscow, 19–30 Oct 1943, reprinted in International Conciliation, No 395, pp 599–605 (1943); also London Agreement of 8 Aug 1945, reprinted in 1 Trial of Major War Criminals Before the International Military Tribunal 8, pp 8–9 (1947) ‘[G]ermans who take part in wholesale shooting of [Polish] officers or in the execution of French, Dutch … or have shared in slaughters inflicted on the people of Poland or in territories of the Soviet Union … will be brought back to the scene of their crimes and judged on the spot by the peoples whom they have outraged’. See Moscow Declaration (n 46).

⁴⁷ For similar conclusion concerning the system of complementarity established by the IMT, see O Triffterer, ‘Preliminary Remarks: The Permanent International Criminal Court— Ideal and Reality’ in O Triffterer (ed), (n 10) 38. In this context, ‘the agreement between the four major powers fighting at that time against Germany, and those nineteen States, which in addition signed the Nuremberg Statute, to guarantee uniformity with an international court besides Nuremberg and Tokyo. Rather, a far-reaching complementarity existed. On both levels, the prosecution and sentencing were based on a practical division of labour’; ibid.

⁴⁸ Although it is not clear whether those major war criminals would still had to stand trial before the IMT if their crimes have been geographically determined. In other words, it is not clear whether the major war criminals stood trial before the IMT also on the basis of their level of criminal responsibility or merely, because their crimes have no ‘geographical localization’.

⁴⁹ In the same vein, Q Wright, ‘The Law of the Nuremberg Trial’ (1974) 41 AJIL 38, 39, 45. Generally on the Nuremberg Trials, T Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (Knopf, New York, 1992); RK Woetzel, The Nuremberg Trials in International Law (Stevens & Sons, London, 1960).

⁵⁰ This does not deny the fact that sending Germans to the ‘scene of their crimes’ implies that the well established principle of territorial jurisdiction was a legal foundation for the establishment of competence ratione loci.

⁵¹ As the Inter-American Court of Human Right stated that the object and purpose of the American Convention ‘is the effective protection of human rights…[it] must, therefore, be interpreted so as to give it its full meaning and to enable the system … to attain its ‘appropriate effects’'. See Fairén Garbi and Solís Corrales Case, Preliminary Objections, Judgment of 26/06/1987, Inter-AmCtHR (SerC) No 2, para 35. Of vital importance is to prevent any restrictions of interpretation that would render the system in question ‘inoperative’. See Constantine et al v Trinidad and Tobago Case, Preliminary Objections, Judgment of 1/09/ 2001, Inter-AmCtHR (SerC) No 82, para 73.

⁵² Prosecutor v Radovan Stankovic, Case No (IT-96-23/2-PT), Decision on Referral of Case Under Rule 11 bis Partly Confidential and Ex Parte (17 May 2005) para 93.

⁵³ Prosecutor v Rahim Ademi and Mirko Norac, Case No (IT-04-78-PT), Decision for Referral to the Authorities of the Republic of Croatia Pursuant to Rule 11 bis (14 Sept 2005) para 57.

⁵⁴ Prosecutor v Zeljko Mejakic, Momcilo Gruban, Dusan Fustar, Dusko Knezevic, Case No (IT-02-65-PT), Decision on Prosecutor's Motion for Referral of a Case pursuant to Rule 11 Bis (20 Jul 2005) para 134.

⁵⁵ Prosecutor v Gojko Jankovic, Case No (IT-96-23/2-PT), Decision on Referral of Case under Rule 11 Bis (22 Jul 2005) paras 102–3.

⁵⁶ Prosecutor v Vladimir Kovačević, Case No (IT-01-42/2-I), Decision on Referral of Case pursuant to Rule 11 Bis With Confidential and Partly Ex Parte Annexes (17 Nov 2006) paras 80–81(noting that the non compliance with the requirements of a fair trial would also trigger the power of the Tribunal to revoke an order of referral).

⁵⁷ Prosecutor v Milorad Trbić, Case No (IT-05-88/1-PT), Decision on Referral of Case under Rule 11 Bis with Confidential Annex (27 Apr 2007) para 44.

⁵⁸ Prosecutor v Gojko Jankovic, Case No (IT-96-23/2-AR11bis.2), Appeals Decision on Rule 11 bis (15 Nov 2005) para 56.

⁵⁹ The term ‘diligent prosecution’ was proposed during the 1996 Preparatory Committee negotiations concerning the establishment of an International Criminal Court. In the context of discussions of the admissibility provision earlier proposed by the 1994 ILC draft statute (Art 35), some delegations thought that the term should be used as a ‘qualification’ for the quality of the national proceedings. Yet, the inclusion of the term was finally rejected, as some delegations thought that the term is ‘too subjective’. See 1996 Preparatory Committee Report, Vol I (n 412) para 164. However, the term was not adopted as being ‘too subjective’. See JT Holmes (n 10) 674.

⁶⁰ Although the jurisprudence of the ICTY for example has restricted its suggestion in relation to revoking an order of referral to a failure of the State to conduct a ‘diligent prosecution’ or a ‘fair trial’, by reading the conditions set out in Rule 9, one could argue that they could be reconciled within the entire system in question. In determining whether a referred case has been ‘diligently prosecuted’, the Prosecutor may therefore take these conditions listed under Rule 9 into assessment as being part of the mechanism established.

⁶¹ Arguably, the phrase ‘diligently prosecute a referred case or conduct a fair trial of the accused’ used by the ICTY is a catch clause that captures any sort of failure to proceed on behalf of the State. Accordingly, it might cover even admissibility situations such as those mentioned in the text of Art 17 of the current ICC Statute.

⁶² In the Stankovic decision, the ICTY Referral Bench supported this conclusion when stated: ‘[R]referral of a case implies that the proceedings against an accused become the primary responsibility of the authorities, including the investigative, prosecutorial, and judicial organs, of the state concerned’. [Once the State proves] ‘failure to diligently prosecute a referred case or conduct a fair trial … Rule 11 bis (F) enables the Referral Bench, at the request of the Prosecutor, to revoke a referral order at any time before an accused is found guilty or acquitted by a national court, in which event Rule 11 bis (G) makes provision to enable the re-transfer of an accused to the seat of this Tribunal.’ Prosecutor v Radovan Stankovic, Case No (IT-96-23/2-PT), Decision on Referral of Case under Rule 11 bis Partly Confidential and Ex Parte (17 May 2005) para 93. The Referral Bench used identical words in the Jankovic decision. See Prosecutor v Gojko Jankovic, Case No (IT-96-23/2-PT), Decision on Referral of Case under Rule 11 Bis (22 July 2005) para 102.

⁶³ In the same vein, WW Burke-White, ‘A Community of Courts: Toward a System of International Criminal law Enforcement’ (2003) 24 Michigan Journal of International Law 1, 10.

⁶⁴ See generally, WW Burke-White, ‘Complementarity in Practice: The International Criminal Court as Part of a System of Multi-level Global Governance in the Democratic Republic of Congo’ (2005) 18 Leiden Journal of International Law 557, 568–69; JJ Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’ (2003) 1 Journal of International Criminal Justice 86, 87.

⁶⁵ Report of the International Law Commission on the Work of its Forty-Fourth Session (4 May–24 July 1992), Annex Report of the Working Group on the Question of an International Criminal Jurisdiction, UN Doc A/47/10, 1992 YILC, Vol II, Part Two, p 64; Report of the International Law Commission on the Work of its Forty-Sixth Session (2 May–22 July 1994), with Annex Draft Statute for an International Criminal Court, UN Doc A/49/10, 1994 YILC Vol II, Part Two, p 21.

⁶⁶ Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th Sess, Supp No 22, UN Doc A/50/22 (1995), paras 29–51.

⁶⁷ See ICTY Rule 11 bis (F), which stipulates that when the Referral Bench decides to revoke ‘an order and make formal request of deferral’, this would be in accordance with Rule 10. Rule 10 by its role refers to Rule 9. Thus, Rule 11 bis (F) makes it clear that Rules 9 and 10 that govern the exercise of the traditional primacy of the tribunal are still applicable.

⁶⁸ Prosecutor v Bernard Ntuyahaga, Case No (ICTR-98-40-T), Decision on the Prosecutor's Motion to Withdraw the Indictment (18 March 1999).

⁶⁹ On account of further models and the development of this theory, see El Zeidy, The Principle of Complementarity (n 10).