Content: 1. - Problem statement. 2. - Metatheory: a choice between acceptance and rejection. 3. - From the primacy of the past to the present, as future of the complementarity. At the same time: a vertical approach and its relation with the ne bis in ídem. 4. - A last thought about complementarity: a vertical approach ¿it is acceptable from a greater horizontal clarity? 5. - Final summary.

Abstract
One of the main issues concerning the International Criminal Court, is its system -supplementary to the systems applied by those States that signed the Rome Statute. The principle promotes the States’ primary obligation to investigate, prosecute and punish perpetrators of international crimes. However, there aren’t clear rules to specify when the International Court will take part in a dispute. The role of the relation is a little uncertain, as uncertain is the situation of those States which are halfway between a national and a transnational venue. There is an attempt here.
 

Key words
International Criminal Court. Principle of supremacy. Principle of complementarity. Conflict of jurisdiction: horizontal and vertical. Ne bis in idem.

1. - Problem statement

I have had the privilege of being student of the Professor Astrid Reisinger Coracini and receiving, concerning of giving her my point of view about the crime of aggression after Kampala,[1] a paper of hers where she analyses in detail the International Criminal Court’s exercise of jurisdiction over the crime of aggression,[2] which has been recently clarified regarding the legal definition of an offence. For this reason, I consider appropriate to disclose part of an unpublished research in process,[3] with the purpose of resolving disputes of multiple intervention regarding the investigation and trial of crimes that are competence ratione materiae of the Court established by the Rome Statute. [4]

There are some issues that arise from the relations that may appear between domestic courts and the International Criminal Court (ICC). Once the question regarding the legitimacy of the ICC is answered, it proceeds to the next two main problems: for one hand and taking into account that The Hague Court -art. 1- performs a function that complements to the specified organs of an State party to the Statute, it seems important to establish some basis to defend the competence of those States or otherwise to transfer it to the Hague Court; on the other hand, to specify what should do or not do the trans-national justice with respect to the work executed by the national justice, to the extent that a final role be recognized over that.

Quite the contrary of what happened with the International Criminal Tribunal for the former Yugoslavia (ICTY, arts. 9 and 10) and Rwanda (ICTR, arts. 8 and 9), that had priority or supremacy over the actions submitted before the national courts; the ICC reached, as the reverse, a preference by the state sovereignty although with a supervision and also cooperation from the ICC. However, the presentation shall be incomplete if it is omitted another influential factor in this topic, such as the place given in the Inter-American system for the protection of fundamental rights to acts that represent attacks against those rights and that, therefore, undermine the nature of every person, establishing the basis of another perspective regarding the jurisdiction.

To conclude this statement and in the center of the crossfire between abroad or domestic trials to each member of the Rome Statute, it also should be noted the specify rights of the defendants under the due legal process. The controversies around this topic are not few nor minimums. I will try to go depth into the issue in order to reveal its importance.

2. - Metatheory: a choice between acceptance and rejection

On another occasion I have mentioned the evolution of the criminal law towards the protection of the basic attributes to the human being: in short, I consider that the Universal Declaration of Human Rights 1948 established two basic systems -beyond the multiple greys -;[5] the compatible or of admission and the incompatible or of rejection,[6] favorable to the Democratic Constitutional State or the Authoritarian State, respectively.[7] This thought is descriptive and it is based on observing, but subsequent to 1945, the decision of the international community to change the omissive and evasive behavior in order to rescue whole groups and societies from the worst nature of our specie or at least to reduce the proliferation of offences. In that regard, some clarifications are needed.

Understanding the law in dialectic key, in hermeneutic sense to connect past, present and to determine a prognosis with some kind of sense, brings along the justification of the punitive fragmentation and the isolation of the States, in relation to the exercise of the coercive power in each one of them to admit the interference of other States. That results from a rationalization that broke forever the links between the legal criminal code and the power of religion in influential government positions, specifically in the creation and application of rules to compose compasses which are totally distinctive, from an autonomous legitimation concentrated in the human action and in the self-connection of a conscious mind, subject to its own temporariness and history.[8] It becomes natural, according to the above mentioned, that the universal idea, inspired in that conception, shall regenerate itself in diversity.[9]

However, with the internationalization of fundamental rights and their subsequent constitutionalization in an intercontinental bridge, that received an adjustment. Far from being a backward, it meant a change: there is a movement by which the threat to the fragmentation doesn’t result from absolute and eternal truths but from a state alignment that is an attack to the multicultural cohabitation,[10] about which there is evidence that it is possible to protect with a right-based supranational engineering.[11] The breakdown is emphasized after the second war in the positive action of punishing acts of illegality, especially if it is stood out of the legal codes where the prohibition is the majority to certain acts or admissions that, on the contrary, are executed as the own law in others.[12] In effect, it should be hesitated that, notwithstanding the existence of the jurisdiction’s problem of the permanent Court, the emergence of the International Criminal Court and the offences within its competence, at least it assumes, for the States parties to the Rome Statute, the overcoming of the idea of a retroactive punishment. So, it doesn’t remove the interstate way that each organized community applies the domestic legislation to the international model so it has enough space to maintain the plurality: Argentina can judge offences before civil jurisdictional organs[13] and the Democratic Republic of Congo shall do that before ordinary judges and militaries;[14] and if life imprisonment is provided by the ICC’ Statute but it doesn`t exceed the constitutional culture of Brazil, then Brazil is not obliged to apply the life imprisonment.[15]

There is no doubt. The International character as a matter of crime’s definition (Preamble ICC, 3) does not oblige an uniformity.[16]

Having explained that, reasons against the subscription of an international system of criminal jurisdiction (to which the ICC belongs) could place in a halfway space between theoretic and pragmatic approaches. Under the approach, there appear several objections: (i) deterministic, (ii) ontological and (iii) empirical.

Although there is unanimity regarding the illegality of crimes that are competence materiae of the ICC, the different luck that had those responsible of committing a crime, it leads to think that they are “...acts linked to, as they always were, the political fortune or military success but unfortunately they are not linked to executed and accepted principles or rules, against both great powers and small countries”.[17] Determinism, especially due to its relation with the crime of aggression of which jurisdiction in the ICC is examined by Reisinger, has – by default- the support of (i.i) historical idealism, which would mean that the justification of its superiority is the result of the own reality:[18] the critique stems from the selection in the decision making regarding to the investigation, trial and criminal responsibility for these offences.[19] This analysis is serious but it is not quite valid; it happens that the trials that took place in Nuremberg (IMTN) and Tokyo (IMTFE) at request of the allies –victors in the second world war- although the trials against to those responsible for extreme cruelty were carried out, the protection of human rights due to the punishment of their violation does not have the same fate.[20]

What it is trying to say, besides the legal conflicts that build another barrier (ii) that it will have its comments ut-infra, is that it is showed a partiality, even subsequent to the ICC.  Though, that has nothing in common with the basis of the last one, because besides its recognition, the politic imposition came from the (i.ii) historiography realism as domination’s expression.[21]

Distant from the previous framework, the ICC is an extraordinary global scene of consensus and, contrary to the courts of last century, also of (-i) anti-determinism. It is important to remember that anybody with interest in this topic has forgotten the United State of America’s attempts to, in first place, stop the creation of an international jurisdictional body with competence in international crimes, and then,  according to Reisinger’s notes, to spread doubts about the definition of the crime of aggression.[22] That proves that the most powerful military Sate is far away of being interested in the defense of legal issues that are important at criminal level and that are linked to fundamental rights; but it is on the other side, the side of non-legitimacy. Two additional notes: for one hand: the formal and material engineering that sets in motion the ICC doesn’t keep full dependence on an ideal or realistic political factor in the historical way that it has been understood;[23] on the other hand: that the outcomes and achievements are still uncertain,[24] it is not a reason for not distinguishing the distance between the notion conceived by the international community, according to the Rome Statute, and the notion (with other procedure) of its precedents.

A well-founded barrier against the international jurisdiction derived from its own revelation: it results to be another criminal law.  It is debatable if it is about a normative system; from the role that the costume has performed at precedent level, in the subsequent development of the international jurisdiction. About the principle nulla poena, nullum crimen sine lege, the Nuremberg trials faced acts against the peace – the aggression- but also against the humanity, which were barely known according to the law (for crimes) of the war, giving place to penalties established by the Statute and which result in regulations ex post facto: apparently, the international community in (ii) ontological code was prepared to investigate, prosecute and punish acts of an incomparable illegality against the human being, regardless of not being considered crimes at the moment of their execution or the ambiguity that the crime may show from the technique, the severe regulation of action.[25] In the opposite pole, there was the criminal science as (-ii) deontological material proposal. In effect, setting that protective umbrella aside, the so-called Magna Charta of the criminal, recently referred to the person, was removed.[26]

Costume not only left a mark in the substantive but also in the procedural. What is in doubt is the trial of the crimes of the ICC’s competence carried out by the courts created ex post facto, questioning its independence and impartiality, (-ii.ii) deontological formal to a fair trial.[27] Besides the thoughts related with the (i) determinism, that could have some connection with this, the imposition of the vertical supremacy of international jurisdiction has been clearly set out as an issue that affects the due legal process.[28] The jurisprudence has found an argument that supports this issue: that is, the justification of a trial by a supranational organ as power of the United Nations Security Council is (very) weak.[29]

Now, those arguments do not survive in the ICC system. In ratione temporae, the Statute attempts to minimize the (ii) ontological problems that face the costume in the criminal international jurisdiction.[30] From the division –substantial and formal- assumed by the inapplicability of the prohibition ex post facto, it was imposed as a (-ii.i) deontological material issue that nobody shall be judged or responsible for an act not defined in the Rome Statute [31] as neither anybody shall, under (-ii.ii) deontic procedure claim, be judged by the ICC for a crime committed ex ante the entry into force of the law of the Court.[32] Thus, most of democratic countries that signed and ratified the government’s instrument of the permanent organ, have assigned an important role to the nulla poena nullum crimen sine lege, as an axiological link of the international law of human rights.[33]

What’s more, the huge consensus in the Rome Statute is very important because it gets off the role concentrated in the power that in United Nations means to be permanent member of the Security Council. More than a hundred of State parties have agreed in giving priority attention to international crimes and trusting in a Permanent Court with complementary jurisdiction, which involves basic principles to criminal law and procedural criminal law[34] which support analogy and retroactivity prohibitions.[35]

At last place, the empirical stocks (iii). It is appropriate to express the need of distinguishing or separating the objection about the difficulty for the intervention of an international jurisdiction from the own jurisdiction that applies the exercise of competence. This analytical differentiation is very useful here because it clarifies and avoids arguments that match up with what it had already mentioned. (i=iii; ii=iii).

In principle, the obstacles that may be encountered by the intervention of the international jurisdiction of the ICC, are not different from any conflict of concurrent competences among different States, that is, in the event of horizontal relation.[36] In effect, the convergence to judge punishable acts is not a subject of vertical coordination between the States and the ICC. Therefore, that the scene of the crime is in one State and the source of proof may result more effective than the evidence that the ICC may found, it doesn´t prevent the ICC the power to judge a transnational crime.  .[37] There are several factors to review.

Within the study of difficulties there are issues like: extension of the damage and number of victims, victims’ interests, defendant’s interests, physical space of proofs, protection of witnesses, localization of witnesses; everything intertwines with the existence of a due legal process, already started in an State.[38] This list clearly informs the problems to investigate, prosecute and convict universal crimes; it has to satisfy the quantitative view about the crime (legality, legal description, exempts, plurality of persons and criminal) and those related to fair trial (accusation, proof, defense, judicature stipulated by law), as well as a qualitative view in reflection to them. In this double view, it couldn’t be any strength in the critique against an international jurisdiction like the ICC, if another national court cannot meet the requirements of legitimacy of its own intervention and there it will appear the real concern: if it is considered that the supranational organ will do a better job; when and how is decided that the other court doesn’t or cannot do it? In matter of reasonable consensus, it is difficult not to accept the social interest to judicially define a crime committed in territory of the State.[39] However, the lack of definition of the other side of the coin is also difficult.

The interest of the State itself and also the international interest in reference to the crime must be balanced. There can be interferences in both domestic and external politics, with cost to the national and international jurisdiction.[40] Although both of them should, in perspective of the legal right, act with responsibility in the investigation and in the criminal procedure against those suspected for committing transnational crimes.

The principle of gravity exists in the field of the ICC, [41] besides the constellation of combinations that could coexist in the relation between the ICC and the national jurisdiction, it is not less suspicious, in the numerus clausus of the crimes defined by the Statute, than the discretion recognized as domestic right of some State parties to the Rome Statute.[42] These thoughts describe the marks left by the impunity.[43] It can also reduce to nothing the universal principle by application of the non-state interference.[44] Regarding the case of aggression, Reisinger shows with details the series of filters that, after the prosecutor`s decision to investigate, the Security Council first and then the pre-trial Chamber of the ICC, could block the clarification and the assignation of responsibility for the crime of aggression.[45]

Cost and duration of the procedures are important. Now, what happens in the international jurisdiction is not better than what happens at national level.[46] Judges and prosecutors have to concentrate their attention to the resolution of the submitted cases.

According to the above mentioned, any empirical problem to the international progress is not greater or more serious than the one affecting the domestic jurisdiction. The strengthening of the ICC is justified in the Rome Statute through the principle of complementarity. The meaning should be understood, in hermeneutics key, as follows: the effective ICC’s exercise of competence, according to its precedents, under no circumstances assumes that the last one be or must be ex ante, better or superior than any judicature of a State party. According to the experience, an a priori conception that reduces the value of the national judicial task, it could even question the legitimacy of the grounds of justice before crimes against the world peace and the human dignity of which impunity would be unacceptable or non-negotiable. For this reason, the transnational consensus engineering – this is what the Rome Statute and its amendment in Kampala reflects, such as Reisinger explain it- came up with another concept: the real opportunity to investigate, prosecute and punish corresponds to the State party, this is what the Statute of ICC wants. Any problem or opposition to apply the pan-national law, as its own, shall barely be the cause of the result ex post of the expropriation of the jurisdiction of the ICC. This Court ad casum shall be, as it must be, overcoming to the lack of answer that decided its intervention.[47]

In short, notwithstanding the arguments applied by the ICC Statute with respect to previous experiences, the best argument is the priority granted to the jurisdiction of the State parties, in reference to defined points of connections such as territoriality of acts or nationality (active) of suspected perpetrators. It is considered a system that confirms the national supremacy and not the international, characteristics of NIMT, IMTFE, ICTY and ICTR.[48]

Summary

3.- From the primacy of the past to the present, as future of the complementarity. At the same time: a vertical approach and its relation with the ne bis in ídem.

The international jurisdiction’s experience has been changing: from the supranational primacy to the complementarity. Until the moment of Nuremberg, it was (almost) nonexistent.[49] As the mark of a mole, a record, subsequent to the First Great War, could be mentioned as a precedent with some influence in the development of the international criminal law. However, it cannot fail to mention the existence of the Leipzig trials.

Since 1921 a dozen cases were heard in the Reichgericht, placed in the mentioned city to the south of Berlin, where former members of the German armed forces were accused of war crimes. In some way, as consequence of the Treaty of Versailles 1919, those suspected of having committed a crime against the international law and costume in war conflicts among States, had to be prosecuted before allies’ military tribunals (not strict international jurisdiction as we understand nowadays).  This didn’t happen and, in change, the defeated decided to prosecute those who could have participated in the acts, though doing that may incur in ontological objections (mentioned ut-supra as ii).[50]

The Allies requested the extradition –under the Treaty- of several German officials, both high and law rank, that was denied,[51] as consequence, it became a formal request of prosecution of those officials that appeared on a list (that at first, it reached to hundreds but then over forty-five persons caught special interest) addressed to Germany, in particular under the pressure of Great Britain regarding abuse and violations reported by war prisoners.[52] The final and positive contribution of the Leipzig trials to the international criminal law, at the time of carrying out an evaluation, generates different opinions.[53]

Having explained that, I think that the existence of the Leipzig’s cases can be capitalized in other sense. It provides rules with hermeneutics sense to the ICC system. The German crossroads due to the allied pressure and the results obtained in the national jurisdiction suggest, so to speak, a clear precedent of expropriation by the international judicature, if it had existed. It was a simulation.[54]  

According to my view, the minimization of the suspects originally requested (i) by the Allies compared to the defendants (-i.i) or to whom do not have relation (-i.ii), as well as against to the crimes (ii) the verdict of not guilty (-ii.i) or verdict of guilty whose quantum was very low (-ii.ii), contribute to the activation of the international jurisdiction for subjective (i vs.-i.i;-i.ii) and objective (ii vs.-ii.i;-ii.ii) fraud, respectively, to the defense of human dignity, fundamental rights and peace, object of protection of the transnational criminal law.[55]

A serious consideration regarding the state attempts to avoid the impunity shall have to answer, reasonably, a question about those who are accused, those who are not accused and explain it, the charges, the progress of the investigation and after the process, the evaluation of the result. Germany, for not complying with the agreement, had been committed to find those responsible for committing international crimes, in particular regarding the violation of laws and costume during the war. If that happens nowadays, in supposition of the Rome Statute, it will be possible to continue with the ICC’s jurisdiction.

The Leipzig trials, concerning their unsuccessful result, report the reasons for an international jurisdiction. Although these crimes have no boundaries and many of them are committed extraterritorially, the territorial principle has its strength in the importance of the social interest in solving punishable acts in a particular state community;[56] but the mentioned principle is neutralized by the universality because for ages those conducts attributable to persons who belong to important structure of the State power, judges and prosecutors are not indifferent to that situation, have had impunity. On the other hand, it cannot be ignored that the violence in the acts that form part of the international criminal law has more complicity or indifference from other areas as it was and it is –or it may be- the national judicature.

Taking into account the previous experience, it is not a coincidence that the exception of lack of jurisdiction of the Nuremberg IMT in the Nazi’s defenses, were unsuccessful. Furthermore the existing determinism in the basis: the defense by application of the territorial principle or active nationality had designated the competence of a German tribunal and German law and however, because of the unconditional surrender of Germany, its own sovereignty was suspended and in power of the Allies, that included the government’s powers.[57] Now then, it is not possible that the functions of the German power executed under the third Reich had been granted guarantees for a different solution.

Although they were undoubtedly contrary contexts, the intervention of the justice in Leipzig or Nuremberg shared serious problems. The aspiration in assigning a criminal responsibility for international crimes had, in one hand, interstate conflicts –with active and passive subjects as agents plus civil population- that fluctuate between a nolens volens behavior and another where they closed the  view to expositions tu quoque with respect to some facts, especially against violations to the ius in bello.[58] From here appears that the state behavior is something well different from the Reich Tribunal as well as the international jurisdiction that had competence to set it aside. In effect and regarding the last issue, one of the obstacles that limit the national intervention is the great variety of nationalities of the persons involved, either victims or killers and before such scene it is not possible to separate the jurisdictional action, without reducing the requirement regarding the fair legal process.

The analysis of Leipzig refers to the important limitation of the national jurisdiction to clarify international crimes, because of the impact in the society, the judicial decision that defines the conflict and the axiological basis in which the procedure is based. However, the Nuremberg IMT have received criticism for the connection of its judiciary with the victors, in a way that lead to the perception that the international jurisdiction should had had a selection regarding its composition.[59]

In the aforementioned, the passing of time until the creation of the ICC is reflected as a step forward, as a great evolution of the international law. From one side, the political factor had stopped the motion starting by the Nuremberg IMT; from the consolidation of the cold war between occident and orient, in particular the issue that Reisinger considers most important: the aggression as a crime, which could have been charged to important countries subsequent to the second war.[60] From the other side, the legality has appeared in the internationalization of the fundamental rights and its constitutionalization and the transnational implementation, in what has been an irradiation –between concaves and convex- from different instruments such as: Fundamental Norm in European central countries, Universal and Regional Treaties of protection and jurisdiction, Special Conventions; what increases the supra and interstate interest regarding the recognition, respect, defense and promotion of those rights as a special center of attention of a pan-national criminal jurisdiction.

The transformation in the scene of the international politics did the rest. Although it is possible to make several criticisms to the ICTY and it would be right to make more than those mentioned here,[61] it cannot be ignored that, together with the ICTR, is the immediate precedent of the ICC.

The mentioned circumstances make a difference between the supremacy of the Nuremberg IMT and the supremacy established for the ICTY or the ICTR. In neither case there were conflicts of concurrence of jurisdictions as argument of a case that demanded for a national jurisdiction, it was also treated by other jurisdiction at the same time, either at States level or over them. In other words, there wasn’t horizontal or vertical collision.[62] Besides, costume at international level had or have solved a problem like that. From that, the interest for the solution is extracted.[63]

The supremacy was –still is- a way of resolving horizontal conflicts among several States and it also indicated the subordination of the last ones to the ICTY regarding international crimes within the competence of their jurisdiction in vertical concurrence. However, it wasn’t until the case: “Prosecutor v. Dusko Tadic”[64] that the formulation of the principle was in action. Although the problem of legality ex post facto which is another issued discussed ut-supra, here according to my view, the defense of the Tribunal ad-hoc is appreciated as expression of a definition such as the total concentration of trials for international crimes in the ex-Yugoslavia, in its own venue.

In the precedent in commento, the ICTY took the lead to resolve any conflict if and when it had competence to determine the jurisdiction,[65] in order to reject the exception to the defense about a point of connection between the accused and the German justice where this last one wanted to carry out the trial. In any way, and out of the basis derived from the Charter of United Nations,[66] it is possible that the real vector regarding the venue to resolve the conflict, it wasn’t a distrust in the German system but that the defendant did not evade, through venue’s change, the procedure established to clarify the focus concerning to the object of protection, competence of the Tribunal. It is acceptable to understand the solution as a consequence, however this doesn`t remove the theological tone.

In consolidation with the previous statement, the ICTR in “Prosecutor v. Joseph Kanyabashi”[67] stated the supremacy as guarantee of the due legal process and not, contrary to the exception of the defense, as violation of that process. The underlying idea was to avoid the intervention of a national jurisdiction in a disrupted State that did not have any answers of independence and impartiality. Regarding these, the Tribunal ad-hoc was a good response to clear up such worries (given A } C ). The objection is that if the problem doesn`t exist, the principle will only prevail by a reason based in the Statute or in its sources (given B } D). [68]

The assignation of that and not its absence (B), will justify the complementarity (A), if it could extract or provide sense to the Rome Statute to take positions regarding the ICC. However, it also appears a timing if the problem is diagnosed as prognosis to the progress of the national jurisdiction or ex post (given [A1] or [A2] } C). In the experience of the ad-hoc Tribunals, the late intervention in demanding the supremacy hasn’t been important because the context of the domestic criminal law didn’t meet the international requirements[69] or because the proof required the intervention of the international jurisdiction.[70]

Besides the above mentioned and as neither of the ad-hoc Tribunal’s organic laws regulated the supremacy’s effectiveness, these tribunals used the rules of procedure and evidence for (auto) providing a reliable guide and therefore to proceed with a reliable exercise of jurisdiction regarding the international crimes within their competence. For that, three cases were distinguished to activate the work over them: 1°) precautionary–objective: directed to the lack of mechanism of implementation of the international criminal law or adaptation of the domestic law into the first which would be influential at the time of approaching the legal description, the legal adaptation and the illegality, especially regarding crimes that are not included in the national legislation; 2°) precautionary-subjective, in connection with arguments linked to faults of the Leipzig’s practice, impunity and lack of guarantees about a due legal process for victims (2°´ reparation variant) or accused parties; and 3°) discretion through the judicature in a subjective-objective understanding aimed at the treatment of an act for the real or legal relevance or the consequences that it could bring one or both of them in a future regarding the entrusted task.[71] In an attempted conclusion the third option would be completely out, according to my opinion, to have an impact on the complementarity and in the active exercise of the jurisdiction of the ICC over a state jurisdiction in which doesn’t concur any precautions.

Summary

The foregoing diagram has to deal with a fundamental problem for the jurisdictional conflict between the state intervention and the claim of the ICC. I’m talking about the major conflict about ne bis in idem, if exist. As the decision of the ICTR stated in the previous jurisprudence, any activation of the international jurisdiction to the nucleus of the safeguard established in the international criminal law has to be legitimated in the severe monitoring of the requirements of the due legal process. It is necessary to affirm that under the excuse of avoiding frauds that entail impunity, contempt and even indifference towards international crimes, the task cannot ignore the recognition and respect of the fundamental rights of every person accused of committing a crime.

There are two variables that need to be met in relation to the activation of the ne bis in idem alarm; it can be important: in primis, not prosecute or start a criminal process at the same time for an identical crime between different state jurisdictions (horizontal concurrence); and in secundis, when there appears a case of fraud that put under a magnifying glass the scope of an eventual res judicata. However, in an estuary between both, there is to take note of an assumed national competence with a regrettable result to the heart of the legal interests and the position of the ICC in front of the conflict (vertical conflict).  

 There are evidences that the principle -concept and predicate- is well known in the context of international criminal law because the statutes that controlled (or still control) the intervention of the transnational jurisdictions mentioned it; what is more problematic is to agree about its validity in the domestic law due to external legal interventions, issue that creates confusion regarding a situation of horizontal concurrence.[72] Although a huge respect and recognition in the occidental side of the States and also in Japan,[73] in effect, the list to agree about the reaches regarding to the ne bis in idem is too long.[74] For this reason, it is not a surprise the disparity of existent solutions regarding the result of foreign judicial decisions that pursue some impact within the States, at the light of the value of the prohibition.  To sum up: an important group of countries would experience a diagram as being large  (+), intermediate (+/-) or small (-), to collect due to the effects of the harvest in horizontal transnational jurisdiction: the first ones (+), in favor of a direct recognition in substantive and procedural codes and with an assessment in the historical act; the second ones (+/-) through agreements or bilateral or multilateral instruments of receiving and with analysis in the importance of the legal adaptation or trial of subsumption for the real framework and at last place (-) those reluctant to the validity for normative dimension, being the jurisprudence the valve where it is verified in the national judicial process, an application of the principle of compensation.[75] But such draft is horizontal.

What is important for this presentation is the vertical perspective, which turns out to be interesting as long as there is a multiple state concurrence and then an activation in the jurisdiction of the ICC. For that reason, it is necessary to implement inter-state competence`s agreements to reconcile qualifications by points of different connections[76] -what in Mercosur exceeds or should exceed to the crimes of the ICC Statute-,[77] to which it would have added that the complementarity cannot set aside the Court of the Rome Statute in the resolution of that issues, on the contrary the court would have the last word.[78] That is deduced from understanding that problems of such characteristics cannot exclude the voice or the vote of the ICC in the reasonable appreciation that the preference for the state jurisdictional activity – regardless the country- should not be confused with some indifference for the determination of who can exercise it.

In the above mentioned sense, it seems important, that if the Rome Statute gives power to the ICC to evaluate the accreditation of its jurisdiction, by subtraction before the inactivity or lack of possibility of intervention of the national preference -I`ll try to cover the evolution and significance- it is not logical to defend the resolution of a conflict by intervention and reciprocal obstacle before an interstate horizontal conflict that, in definitive, shall be vertical.[79]

Having said that, the experience suggests that the bis in idem in vertical perspective, to be effective in the defense of an accused has -since de legacy from the ICTY and ICTR- much to do with the complementarity, from down to top (aA): thus the principle could result limited according to the seriousness that the international criminal law is implemented in the domestic law,– therefore the act must be an international crime in order to be contrary to the exception-,[80] or if it doesn’t result negative to interest of the due legal process, either for active or passive subjects of the crimes or their families (1°; 2° -i.i, -i.ii; 2°´ -ii.i, -ii.ii).[81] Although this position and the stance provided by Reisinger with respect to the aggression of which jurisdiction in the ICC is recently, it doesn’t seem to be anything solid of which to hold.[82]

Another side to expose regarding the issue is the asymmetry because it will differ in the impacts if it is opposed from down to top (a}A) or vice versa (a{A). The first possible course, ascendant (a}A), refers that it is not an assumption that the domestic decision is open to any kind of “conclusion”, with regards to the normal or abnormal procedural exhaustion; the judgment has to be final, in favor or not to the accused party, as long as it had had typical subsumption as international crime, it is necessary to take into account that it couldn’t –ascending- have discretionary agreements or politics of pardon through amnesty.[83] Another unclear issue, in which a theological interpretation should be imposed, would be the hypothesis that anybody who results investigated, prosecuted and convicted will achieve later, in short or long term, real revocation of the punishment under any national authority.[84] The framework of the legal analyses derive from, under my point of view, the understanding of the gravity of the acts because it is different in the field of the ICC’s jurisdiction -by the prosecution or its initial judicature- that have “competence to such competence” and which at domestic level, in the field of the Rome Statute, the national judicature will be exposed if this organ doesn’t consider serious an act that the ICC and its organs do. However, if it had not strictly been a case of illegality, it would be the end of the transnational procedure.

Anyway, it is necessary to separate the possibilities that the Rome Statute display before (the prosecutor of) the ICC in relation to the gravity of the acts, to influence over the vertical relation. In effect: it can happen that >) the case is serious or <) not (¿?); >>) (being serious) that the State has real availability and >>>) (being serious and available) besides want to do it; in <) and >>>) finish the international jurisdiction.[85] Because it can also happen that ><) (being serious) it does not have real availability; ><>) which will lead to evaluate the justice interest; ><<) if it had not, it shall evaluate the information or new acts; ><>>) if it has, there is to think the variable that the Council of Security of United Nations suspend it.[86]

The opposite course, descending (a{A), limits the validity, taking into account the general framework of intervention, until here, from where the transnational jurisdiction adjust its means to the successful of the more appropriate cases -if the ICC’s prosecutor doesn’t initiate a process, there is no margin to request for the exception-.[87] However, the issue that highlighted in the difference between one or another, in a historiographic perspective is that the continuity of a supra state accusation could be affirmed as double in the domestic law without procedural consequences, from a change of nomen iuris; in other way in the transformation of an act. Thus, in addition, it had existed a trial in a trans-border judicature because an inadmissibility would not be counted and if the procedure is occurred will not be ridiculous due to the solution until here, such release shall be compensated with a responsibility at domestic level, more minimized.[88] However, the ICC shall not have these problems because its system doesn’t accept to change or substitute typical subsumptions in a natural view of the human act phenomenon.[89]

Summary

4.- A last thought about complementarity: a vertical approach ¿it is acceptable from a greater horizontal clarity?

A case that could fall within the ICC’s jurisdiction, which is limited by different orders such as: ratione loci, ratione personae, ratione temporis and ratione materiae, the previous section could provide us several clues to understand and thus defend the national judicial intervention.[91] Now then: how to know which state authority has to investigate and take to trial international crimes? In spite of what has stated ut-supra about the ICC would have competence to resolve any conflict among States that claim to themselves the activation of the ius puniendi, the court has to analyse the influence of other international tribunals, although they do not have criminal character, in other words, though it is not a transnational horizontal perspective.[92] I will explain the importance of a guide before a national horizontal conflict.

If under the jurisdiction of the Inter-American Court of Human Rights (ICHR), the court shall sentence a State to initiate a criminal investigation with the purpose to find those responsible that may be involved in crimes defined in the Rome Statute, taking into account that it is based on the understanding of the primary obligation of the States Parties to the American Convention of Human Rights,[93] that is: to ensure the fundamental rights of every person, to prosecute, bring to trial and, if it is appropriate, to sentence persons involved in violations against those rights, it shall be a priority issue of the convicted, before any other country, to take action in the case, which make to the compliance of the sentence pronounced against him. This, without question, is linked to the point of connection based on the territorial.

In this area, when the ICHR pronounced itself in the case “Gelman vs. Uruguay”[94], it cleared a path. It was discussed -I remembered it without much details – the disappearance of a pregnant woman who gave birth in the year 1976 under the context of military governments in all the region, without knowing -at the moment of passing sentence- their whereabouts and taking into account of the Expiry Law of ius puniendi, enacted in Uruguay, in 1986. Under that decision, perpetrators and participants involved in the crime weren’t prosecuted and went unpunished. In such sense, the fact is a crime against humanity and a duty of the State party to prosecute it, clarify it and assign responsibilities.[95] The thesis recognizes precedents in the collection of the Court’s decisions.[96] According to my knowledge, since the primary obligation of protection of fundamental rights, as issue of the State party to the ACHR, provided that the event are part of the criminal legality and the correlative right of the victims for the solving and reparation, if the restoration is not possible, no doubt may remain where the conventional violation occur, it shall have priority before another concurrence state interest in the exercise of the state coercion according to the ICHR, except for contradiction with its position in the final interpretation of the instrument, within its owns competence.[97]

Examining the judgment it is noted that the ICHR analyses the failure to comply and the main role of the judges in the conventional interpretation to reject or approve the implementation of the domestic law;[98] what is unquestionable is that perspective has to be extended towards the Rome Statute. The decision of the Court, which is the final interpreter of the Convention closes the privilege of territory as point of connection, which means a guiding adaptation to comparative laws such as Brazil’s law, besides the Argentine case.[99] These traditional rules obey to an identity of protection and safeguard of legal interests fundamental to the society where the law is imposed. To establish criteria to coordinate the subsistence of this interaction, far from revolutionizing the spatial application of the law, reinforce it due to the obliquely observation that from the collective ends in the defense of the human dignity, central concept of the punishable acts of the ICC’s Statute.[100] Our analysis is interested in noting that maybe for the State, the territorial principle cannot be extended in crimes that violate the constitutional base and the institutions.[101] However, for the society is essentials that the judicial power resolves punishable acts that contribute to the cohabitation and survival as organized international community, located in a non-negotiable axiological bastion.  

The solution has a favorable reception from the offensiveness -dogmatic capital of a minimum criminal law- that is adapted to the territorial and can be better regarding to normative criteria that avoid the proliferation of concurrent state actions as horizontal conflicts of all evidence. The previous text leads as to validate the option that privilege the intervention for punishable action as forum delicti comissi (Handlungsort). However, if it is executed by several acts and in several States, we also have to look for normative criteria to order and avoid the jurisdictional weakness and make it more effective. It is not dismiss the preference, if the punishable act distinguish it for the place of consequence or the result of the behaviors (Erfolgsort).[102] Only if the act will affect to several states, it could be connected with the personality (active), as benefit to agree the final intervention.

According to my point of view, the connection under the universal principle and the jurisdiction of a state, it could be admitted only if it does not concur another with better right, based on the Rome Statute. However, there is to take note of the collaboration that means for the ICC the existence of an interest in the prosecution of crimes within its competence.

5.- Final summary

The course until here has determined a position that prefers optimism to pessimism regarding if the ICC will be really further that any previous international jurisdiction. In spite of that, there are some regulations that could conspire in the practice with the adopted stance. The functional complementarity of the courts has much to do in the relation with the States Parties to the Statute. I have tried to find a harmony compatible with the theological sense of the clauses.

The relation between the application of the international criminal law on behalf of the State and the claim of the international jurisdiction, must consider the efficiency of the first one. It would be forced to move it without reason at the light of the Statute. However, if the domestic jurisdiction is kept and if it doesn’t give the results from the perspective of the preamble of the ICC’s Statute, we will witness to the displacement’s hypothesis expressly contemplated: It has also seen that the proof inefficacy wouldn’t comply with ACHR, which is the regional instrument to protect fundamental rights. If there is no collaboration or cooperation, the reality will show a violation to the international obligation assumed by several instruments.

The context, in any case, doesn’t do without requirements of the due process and the prohibition of the ne bis in idem is linked to that. In any way, it is a complicated area. The international law (as part of the law’s theory) in combination with the criminal content, it is. As such, there is to proceed carefully and from my place, I have barely tried to give a few but reliable steps in such task.

Fecha de publicación: 25 de abril de 2016