Submitted to Professor M. Masaeli
for the course Special Research Topics: Global Justice
University of Ottawa, July 22, 2012
In his book The International Criminal Court and National Courts: A Contentious Relationship, Nidal Nabil Jurdi uses a deeply comprehensive historical and legal analysis to answer his question of whether the International Criminal Court (ICC) is effective at encouraging national judicial systems to prosecute core crimes in the effort to eradicate impunity in the international criminal system. What Jurdi refers to as a “hope that the ICC would change the dynamics of international relations, creating a global body that transcends state interests to enforce an erga omnes duty to prosecute international crimes” he says, “has not yet been realized” (Jurdi, 2011, p. 263). In his historical recounting of the negotiations surrounding the creation of the ICC and complementarity principle, Jurdi builds his conviction that the “complementarity mechanism” (as he puts it) has been unsuccessful at encouraging states to take up their duty under the Rome Statute to prosecute core crimes, and thus the ICC and states together have not been able to eradicate impunity (p. 6). Jurdi draws on a thorough and complete inspection of the Rome Statute as well as case studies from Uganda, the Democratic Republic of Congo (DRC), and Sudan to follow the reader through his conclusions. Although Jurdi’s detailed historical and legal analysis of the complementarity principle (both in abstract and in practice) effectively draw out the ICC’s weaknesses and strengths, the book lacks developed or original suggestions. While I agree on Jurdi’s central conclusion on the ineffectiveness of past co-operations between national judicial systems and the ICC, I differ on the solutions I call upon in response. Where Jurdi advocates for greater support for the ICC both at the international and domestic level, I suggest that the improvement of national judicial systems themselves require the focused energy and support of the international community.
To illustrate, this review will articulate the particular realities that Jurdi reveals as significant and deeply concerning complications for the effectiveness of the complementarity mechanism. These realities include the implications of: (1) state cooperation (illustrated by the Darfur case); (2) pardons; and (3) a positive interpretation of complementarity (to be elaborated later) as critical barriers toward the effectiveness of complementarity. While Jurdi uses these weaknesses and loopholes in the complementarity principle to strengthen his call for greater support for the ICC, this review will highlight his arguments from a different light, viewing the issue instead from the bottom (domestic to international), as opposed to the top (international to domestic) perspective, the latter of which Jurdi employs throughout the book. The author’s work in this light will reveal that while he aims to end impunity, his suggestions do so only short-sightedly. Rather, the focus of his perspective remains focused on unsustainable solutions for cooperation to improve the effectiveness of the ICC on a case-by-case basis. The aim of this review of Jurdi’s book, hopes to make clear that impunity could be more sustainably combated by greater effort towards improving the national judicial systems themselves.
To begin, it is noteworthy that Jurdi approaches these issues as a lecturer on the subject of international law and organizations at the American University of Beirut, Lebanon. In the past, Jurdi has been Human Rights Officer at the United Nations Office of the High Commissioner for Human Rights and is widely published in this and other areas including terrorism and Lebanese law (Jurdi, 2011, p. xxvii). Deeply entrenched in the international criminal law system from the top, it is reasonable and perhaps justified that his aim in the book is to inform and help to solve the issue of impunity on a short term, or case-by-case, basis.
(1) State cooperation
The author’s deep legal analyses of Article 17, Article 20, and Article 53 of the Rome Statute reveal how the complementarity mechanism in its careful choice of terms, notes and criteria is deeply rooted in the principle of state sovereignty as a result of the process of negotiations and compromise by the drafters. With this insight in mind, it is almost with humour that Jurdi the notes the following, referencing the ‘unwillingness’ criterion with respect to admissibility, in the Darfur case: “it is a deep paradox for the ICC, whose jurisdiction is triggered by the lack of action or unwillingness of Sudan [to prosecute core crimes], to rely heavily on the support of Sudan to carry out its mandate” (as cited in Jurdi, 2011, p. 258). Here, the author refers to the political and practical challenges that the ICC faces in attempting to conduct proceedings against Ahmad Harun, Ali Kushayb and Omar al-Bashir, which ultimately prevented the ICC from conducting investigations inside Sudan (as cited in Jurdi, 2011, pp. 253-5). While this is a unsettling setback, the complexities regarding state cooperation dig further, since in light of the Security Council, we see that: Continue reading