International Criminal Court and the Rome Statute. Some notes on the principle of complementarity: A reading of the Brazilian law

AuthorFabio Ramazzini Bechara
Pages196-201

Fabio Ramazzini Bechara. Prosecutor Attorney for the State of São Paulo. Former member of the Special Task Force for the Deterrence of Organized Crime. Doctoral Candidate in Law at the University of São Paulo and Master in Law from the Pontificia Universidade Católica de São Paulo. Member of the International Association of Criminal Law. Professor at the School of Public Prosecution in São Paulo and of the Damasio de Jesus Law School. Author of books and studies published both in Brazil and abroad (e-mail: fabio.bechara@mp.sp.gov.br).

Page 196

Introduction

The presidential decree no. 4.388 of September 25, 2002, promulgated the Rome Statue of the International Criminal Court1. The statute had been previously ratified by the National Congress through the legislative decree no.112 of June 6, 2002. Later, the constitutional amendment no.45 recognized the legitimacy of the International Criminal Court in the fifth article of the National Constitution. The court would then prosecute crimes defined by the Rome Statute.

The international norm effective in the internal level, established the jurisdictional competence of the International Criminal Court for the prosecution of crimes such as genocide, crimes against humanity, crimes of war and of aggression, established the penalties and defined the procedures to be observed, from the investigation to the execution of those accused of such crimes.

It would be, however, relevant to know under what conditions or assumptions the International Criminal Court would act in case there is a conflict or concourse with the Brazilian jurisdiction. It is, therefore, possible to ask: if a Brazilian citizen commits one of the crimesPage 197 mentioned or if such crime is committed in Brazilian territory which organ would have the competence to act? What would be the penal law applicable to the case?

How to establish the cooperation between Brazil and the International Criminal Court?

Paper content
Problem description

Those questions take from the principle of complementarity2 the fundamentals to the answer, since such principle is the basis of the International Criminal Court action and of the application of the dispositions of the Rome Statue. To answer such questions, however, one must examine some previous concepts.

Antecedents

The International Criminal Court is an instance created neither to regulate the internal reality of the States nor to override the capacity of these States to deal with local problems. The International Criminal Court is rather one more tool for humanitarian protection derived from the recognition of the universal3 character of human rights to reinforce the process of accountability for international crimes at a national level. The court is one more judicial instrument to strengthen national justice systems by incorporating specific international standards.

The movement towards an international penal jurisdiction in terms of human rights is associated with the omission or incapacity of national jurisdictions to deal with severe violations which breed a feeling of collective indignation in the international community and create the need for power to handle such issues. The International Criminal Court is, therefore, the most adequate instrument to assert human rights. Moreover, the insufficiency of economic sanctions, the rights of the victims, and the importance of not forgetting the atrocities committed enhance the desire of establishing a permanent International Criminal Court.

The resort to Penal Law by the international community to condemn as crimes attempts to transgress universal human rights and to punish atrocities according to international standards leads to the need of expanding the power to effectively protect human rights.

While it is possible to establish two instances of responsibility for international crimes national and international- it is also necessary to find if there any areas in which the two instances clash. Whereas national jurisdictions in the prosecution of international crimes are guided by the principle of universality -universal or cosmopolitan justice- it is perfectly possible for two or more States to demand the right to prosecute criminals.

When the case, however, is referred to the international judicial order, whose action Becomes necessary because of the incapacity or impossibility to punish at a national level, the action of the International Criminal Court is applicable and non-conflicting.

In such case the International Criminal Court has the monopoly of International Penal Law as an instance of guarantee or ‘ultima ratio ‘. The legitimacy of international Criminal courts derives from their capacity of assuring that human rights are protected according to Norberto Bobbio4.

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The solution to the apparent conflict lies on two principles: the primacy of international jurisdiction and its complementary character. While the primacy is based on the idea that international jurisdiction should prevail over national jurisdiction, the principle of complementarity assumes a local incapacity or connivance to supply an answer to a given situation.

The Nuremberg...

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