Some Lessons on Complementarity for the International Criminal Court Review Conference
The South African Yearbook of International Law, Vol. 34, 2009
29 Pages Posted: 2 Aug 2010 Last revised: 20 Mar 2011
Date Written: May 20, 2010
The ICC practice in the last seven years disclosed a number of contentious issues within the legal and practical parameters of complementarity. The complementarity regime serves as a system to encourage and facilitate the compliance of states with their responsibility to investigate and prosecute international crimes. However, this has not been materialized in practice. The ipso facto admissibility of cases of inactions proved to be damaging to positive complementarity. It opens the door widely for overloading the ICC with many cases of no added value for the ICC and for ending impunity. Article 17 has been interpreted narrowly by the Prosecutor and the Chambers, and this interpretation and policy needs to be amended. In this regard, some amendments to Article 17 could be suggested; mainly to correlate explicitly Article 17 to preambler paragraph six of the Statute, and to use judicial and non-judicial tools to encourage national jurisdictions to prosecute. There are number of challenges that are awaiting the ICC Review Conference in Uganda in 2010. It will be a huge missed opportunity if complementarity is not discussed and addressed in this Conference. The hope is that the Review Conference will courageously address this vital issue to revive the path of the ICC in the direction of encouraging national jurisdictions to contribute to ending impunity, while the ICC remains vigilant to ensure justice is done in conformity with the ICC Statute.
Keywords: Complementarity, inaction, unwillingness, inability, ICC Statute, ICC Review Conference, positive complementarity.
JEL Classification: K33
Suggested Citation: Suggested Citation