Taking Complementarity Seriously: On the Sense and Sensibility of ‘Classical,’ ‘Positive’ and ‘Negative’ Complementarity

34 Pages Posted: 8 Sep 2013

See all articles by Carsten Stahn

Carsten Stahn

Leiden University - Grotius Centre for International Legal Studies

Date Written: June 30, 2011

Abstract

Complementarity has many faces. Today, it is traditionally theorised on the basis of a distinction between ‘classical’ and ‘positive complementarity’. This chapter revisits this categorisation. It argues that both conceptions are inherent in the framework of the Statute, but underdeveloped in their articulation and meaning due to the framing of Article 17. Both concepts are often misunderstood or used, in order to justify specific policy choices. This chapter argues that forum allocation is governed by three cardinal principles which underpin the functioning of the Rome system of justice: (i) effectivenes, (ii) impartiality and (iii) fairness. It defines means and methods of ‘classical’ complementarity, including its use as a carrot and stick. It challenges the assumption that ‘positive’ complementarity is merely a policy principle or a tool to strengthen domestic jurisdiction. It argues that the Court is empowered to use techniques to overcome ‘inability’ and unwillingness’ as part of its mandate. It claims that the move from a passive to a managerial understanding of complementarity requires greater attention to the foundational goals of the Court, i.e. judicial independence, effective justice, fairness and sustainability.

Keywords: International Criminal Court, Complementarity, Cooperation, Prosecutorial Discretion

JEL Classification: K33

Suggested Citation

Stahn, Carsten, Taking Complementarity Seriously: On the Sense and Sensibility of ‘Classical,’ ‘Positive’ and ‘Negative’ Complementarity (June 30, 2011). Available at SSRN: https://ssrn.com/abstract=2321844 or http://dx.doi.org/10.2139/ssrn.2321844

Carsten Stahn (Contact Author)

Leiden University - Grotius Centre for International Legal Studies ( email )

Leiden University Law Faculty
P.O. Box 9520
Leiden, 2300 RA
Netherlands

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