Too Much of a Good Thing? ICC Implementation and the Uses of Complementarity
THE INTERNATIONAL CRIMINAL COURT AND COMPLEMENTARITY: FROM THEORY TO PRACTICE, Carsten Stahn & Mohamed El Zeidy, eds., CUP, 2010
25 Pages Posted: 18 Jan 2010
Date Written: January 15, 2010
This submitted draft attempts to criticize some of the excesses of ICC complementarity when it comes to implementation. The argument is that states are being pushed by transnational civil society to harmonize their domestic laws with the Rome Statute in ways that have little to do with the requirements of complementarity and, instead, reflect traditional human rights and rule of law agendas. I identify several ways in which implementation is being used as a sort of "Trojan horse" for these agendas, and then suggest that the reality of complementarity is that the ICC will almost never find a state unwilling or unable simply because of relatively minor qualitative differences in the substantive or procedural law it applies. The only exception is cases where the absence of implementing legislation makes it impossible for a state to exercise jurisdiction over a crime entering the Court's jurisdiction. I conclude with a few thoughts on what complementarity should be: not so much a stick to beat international criminal law laggards, but a device to manage diversity and pluralism in international criminal law.
Keywords: international criminal law, complementarity, implementation
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