The Relationship of International Criminal Tribunals to Domestic Courts: Towards a New Division of Labor? (L'Articulation Entre Tribunaux Penaux Internationaux Et Juridictions Nationales: Vers Un Nouveau Partage Des Competences Judiciaires?)
International criminal justice claims to challenge the very fundamentals of the international legal order. Yet international criminal justice is also still very much a work in progress. It success will depend on how well it can deal with its great founding dilemmas, while respecting international law and its continuity. No question seems more central yet more ambiguous to international criminal tribunals' existence, in this context, than how they relate to domestic courts. This is an issue which in fact raises anew the very conundrum at the heart of international criminal tribunals' creation and identity. On the one hand, international criminal tribunals can be seen from a "universalist" perspective which argues that they are first and foremost about the emergence of a global public order; on the other hand, they can be conceived from a "sovereignist" angle, which sees their prime duty as working for the benefit of states whose crimes they are judging. It is by putting this problematic relationship back into its overall evolution and, in particular, by focusing on what a "non-functioning" domestic court is under international law, that it will become possible to transcend that ambiguity. It will appear that the issue of what is a domestic court that is either "unwilling" or "unable" is in fact an old international law question whose understanding can be improved by a dynamic reading of the evolution of international law. In final analysis, however, it may be that the International Criminal Court's capacity to emancipate itself entirely from the political will be limited, as the Prosecutor adopts a prosecutorial policy which, in itself, is unlikely to be reducible to law's categories.
The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity
Together with the provisions on jurisdiction, the principle of complementarity is the pivotal mechanism to delineate the exercise of jurisdiction by the ICC from that of national authorities, including national courts. Designed to find a balance between state sovereignty and the interest of the international community in the effective prosecution of international crimes, it may well prove to be one of the most contentious features of the Statute in its application. The principle of complementarity has thus been described as essential for the acceptance of the Statute by states, and is often referred to as the underlying principle or the cornerstone of the ICC Statute. The present article seeks to contribute to the discussion on one of the most opalescent notions of the Statute. Starting with an analysis of the rationale of the complementarity principle, it examines the substantive elements contained in Article 17 ICC Statute as well as the procedural framework as set out in Articles 18 and 19 ICC Statute. The article furthermore explores the question of the impact of Security Council resolutions under Chapter VII of the Charter and the possibility of states to "waive" complementarity.
The Meaning of the Term Denial of Justice in International Law
The term “denial of justice” has been used widely to describe certain types of acts and omissions of States directed against foreigners deemed to be internationally illegal and justifying diplomatic interposition by the aggrieved State. There is no agreement, however, as to the precise scope of the term. In attempting to determine whether a single definite meaning can be assigned to the expression, emphasis must be placed upon its actual use in diplomatic practice and in the decisions of international tribunals, for the opinions of writers, no matter how authoritative, may not correspond with the practice of States. A few general considerations may be suggested by way of introduction.