Kenya vs. The ICC Prosecutor

19 Pages Posted: 11 May 2013 Last revised: 14 Oct 2017

See all articles by Charles C. Jalloh

Charles C. Jalloh

Florida International University College of Law

Date Written: May 9, 2013


A fundamental pillar of the Rome Statute of the International Criminal Court (ICC) is Article 17, which enshrines the complementarity principle – the idea that ICC jurisdiction will only be triggered when states fail to act to prosecute genocide, crimes against humanity and war crimes within their national courts. This Harvard International Law Journal essay evaluates that first ICC Appeals Chamber ruling on a State Party’s use of the complementarity principle to contest the court’s jurisdiction. It argues that the Court’s introduction of the “same person, substantially same conduct” test has effectively turned complementarity into primacy. Under primacy, which applied in the UN ad hoc tribunals, the national courts are obliged to relinquish their cases upon the request of the international tribunal. I argue that the ICC’s denial of Kenya’s admissibility challenge, when the state was taking some albeit admittedly imperfect investigative steps to address the 2007-2008 post-election violence, deviates from the underlying precepts of “positive complementarity”. The high threshold that the ICC judges have set for complementarity may limit the Court’s effectiveness because it undermines states’ ability to assert their first right to prosecute.

Keywords: International Criminal Court, Pre-Trial Chamber II, decision on the authorization of an investigation in Kenya, proprio motu prosecutorial investigations, crimes against humanity, Article7(2)(a) of the Rome Statute, contextual elements of crimes against humanity, state or organizational policy

JEL Classification: K14, K19, K32, K33, N40

Suggested Citation

Jalloh, Charles C., Kenya vs. The ICC Prosecutor (May 9, 2013). Harvard International Law Journal, Vol. 53, p. 269, 2012; U. of Pittsburgh Legal Studies Research Paper No. 2013-09; Florida International University Legal Studies Research Paper No. 17-38. Available at SSRN:

Charles C. Jalloh (Contact Author)

Florida International University College of Law ( email )

11200 SW 8th Street
RDB Hall 1097
Miami, FL 33199
United States


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