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http://ssrn.com/abstract=964201
 
 

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Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice


William W. Burke-White


University of Pennsylvania Law School


Harvard International Law Journal, Vol. 49, Pg. 53, 2008
U of Penn Law School, Public Law Working Paper No. 07-08

Abstract:     
When the International Criminal Court (ICC) was established in 2002, States, NGOs, and the international community had extraordinarily high expectations that the Court could bring an end to impunity and provide broad-based accountability for international crimes. Nearly five years later, those expectations appear unfulfilled, due to political constraints, resource limitations, and the inability of the ICC to apprehend suspects. This article offers a novel solution to the misalignment of resources, expectations, and legal mandate of the ICC, arguing that the Court must more actively engage with national governments and encourage States to undertake their own prosecutions of international crimes. The article shifts basic understandings of the ICC's role through a policy of Proactive Complementarity, whereby the international Court would encourage and, at times, assist States undertaking domestic prosecutions of international crimes. The article examines the legal mandate for such a policy, considers the political constraints on the Court, offers a practical framework for the implementation of Proactive Complementarity in the range of circumstances the ICC is likely to face, and documents early examples of Proactive Complementarity in the ICC's initial operations. Overall, the Article argues that encouraging national prosecutions within the "Rome System of Justice" and shifting burdens back to national governments offers the best and perhaps the only way for the ICC to meet its mandate and help end impunity.

Number of Pages in PDF File: 56

Keywords: ICC, international crimes, Proactive Complementarity, Rome System of Justice

JEL Classification: K14, K33, K42

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Date posted: February 20, 2007 ; Last revised: April 1, 2014

Suggested Citation

Burke-White, William W., Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice. Harvard International Law Journal, Vol. 49, Pg. 53, 2008; U of Penn Law School, Public Law Working Paper No. 07-08. Available at SSRN: http://ssrn.com/abstract=964201

Contact Information

William W. Burke-White (Contact Author)
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
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