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Complementarity in the Rome Statute and National Criminal Jurisdictions$
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Jann K. Kleffner

Print publication date: 2008

Print ISBN-13: 9780199238453

Published to Oxford Scholarship Online: May 2009

DOI: 10.1093/acprof:oso/9780199238453.001.0001

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Complementarity and the Obligation to Investigate and Prosecute

Complementarity and the Obligation to Investigate and Prosecute

(p.235) VI Complementarity and the Obligation to Investigate and Prosecute
Complementarity in the Rome Statute and National Criminal Jurisdictions

Jann K. Kleffner

Oxford University Press

This chapter addresses the question whether and to what extent the Statute obliges States to exercise their jurisdiction over ICC crimes. It concludes that the Statute imposes on States Parties, which have established jurisdiction that conforms to international law — an affirmative obligation to exercise their jurisdiction. That obligation is a uniform obligation applicable to all ICC crimes. Some doubt is expressed as to whether this essentially categorical obligation is entirely satisfactory. While it is a well-founded general rule, account should have been taken (or should be taken in the future) of the fact that there might be exceptions to that rule. However, the Statute fails to accommodate genuine alternatives to criminal prosecutions and does not set forth parameters, which could guide States in considering whether and under what conditions they may opt for mechanisms such as truth commissions, traditional forms of justice, and the exercise of prosecutorial discretion.

Keywords:   obligation, ICC crimes, legal force, preamble, prosecutorial discretion, criminal proceedings, amnesties, truth commissions, legal avenues, non-prosecution

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