A sentence-based theory of complementarity

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Heller, Kevin (2012)
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    103 references, page 1 of 11

    2. Rome Statute of the International Criminal Court art. 17, Jul. 17, 1998, U.N. Doc. A/CONF.183/ 9 [hereinafter Rome Statute].

    3. See Fre´de´ric Me´gret, Too Much of a Good Thing? ICC Implementation and the Uses of Complementarity, in The International Criminal Court and Complementarity 363, 372 (Carsten Stahn & Mohamed El Zeidy eds., 2011) (discussing the “'mirror' theory of implementation”).

    4. A heuristic is an experience-based technique-a “rule of thumb”-for solving a particular problem. See, e.g., John M.C. Hutchinson & Gerd Gigerenzer, Simple Heuristics and Rules of Thumb: Where Psychologists and Behavioral Biologists Might Meet, 69 Behav. Processes 97, 98 (2005).

    21. Terracino, supra note 17, at 436.

    22. The ejusdem generis canon-which translates from Latin as “of the same kind”-holds that when a list of examples is not exclusive, additional examples must be similar to the enumerated ones. Gabriel Hallevy, A Modern Treatise on the Principle of Legality in Criminal Law 156 (2010).

    23. Rome Statute, supra note 2.

    24. See Markus Benzing, The Complementarity Regime of the International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight Against Impunity, 7 Max Planck Y.B. U.N. L. 591, 617 (2003) (arguing that “[c]ases where a state is declared unable because its national legislation differs from the substantive provisions of the Rome Statute should . . . be limited to situations where it . . . does not penalise a conduct proscribed under the Statute at all”). But cf. Kleffner, Impact, supra note 5, at 89 (arguing that “inability may result from the absence or inadequacies of substantive legislation”).

    25. The expression refers to the fact that, in such situations, the ne bis in idem bar flows “upward” from the state to the ICC.

    26. Rome Statute, art. 20(3)(a) (“No person who has been tried by another court for conduct also proscribed under article 6, 7, or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court . . . were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court.”). Articles 6, 7, and 8 concern genocide, crimes against humanity, and war crimes, respectively.

    27. See William A. Schabas, An Introduction to the International Criminal Court 70 (2001).

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