The International Criminal Court and the principle of substantive complementary : universal jurisdiction, the Security Council and the challenge to the duty to prosecute core

Abstract

The thesis assesses whether States are required to investigate and prosecute the most serious crimes of international concern. To this effect, it analyses the regime determined under treaty law, customary law and general principles of law for the prosecution of core crimes. It examines whether the prohibition to commit core crimes embodies jus cogens and, if so, what consequences derive therefrom for the duty to prosecute perpetrators. Further, considering that the ICC was established in order to fill in lacunae of accountability derived from States’ unwillingness or inability to prosecute, the thesis scrutinizes the jurisdictional framework established by the Statute, in particular the principle of complementarity. On the basis of the study undertaken, it is argued that complementarity as determined in the Rome Statute is a specific materialization of a broader concept of complementarity. The thesis concludes that core crimes law has been motioned forth by the principle of substantive complementarity, which binds the custodial State to prosecute, where extradition is not feasible and international jurisdiction cannot step in, if necessary on grounds of universal jurisdiction. Finally, taking into account that the Statute of Rome articulates the mandate of the Court with the authority of the SC to maintain international peace and security, the thesis proposes a model of coordination of the competences of States, the ICC and the UN political organ, in accordance with the law of the Charter, the Rome Statute and peremptory norms of the international community. Against this backdrop, a systematic framework of the duty to prosecute core crimes is submitted, such that sovereignty and the principle mandating the fight against impunity are operatively reconciled.