31 Pages Posted: 24 May 2014 Last revised: 19 Jun 2014
Date Written: 2013
The International Criminal Court’s jurisdiction is complementary to that of national criminal jurisdictions. While most agree that complementarity is a cornerstone principle, debate continues as to what precisely it should mean for the ICC’s relationship to national criminal justice actors. “Positive complementarity,” a view many commentators hold, suggests that the ICC should use its power to educate, persuade, and prod states parties to undertake international criminal law investigations. For positive complementarity’s more optimistic proponents, the future holds promise for a coordinated system of global justice in which the ICC plays a secondary role to national courts in vindicating international criminal law violations. In this essay, based on remarks presented at the Emory International Law Review’s 2013 Symposium on the ICC’s future, I argue that a robust regime of positive complementarity will require that the ICC deftly navigate a post-colonial landscape — i.e., widespread underdevelopment, political and social fragmentation, and epistemic heterogeneity. Doing so effectively will require tools the ICC does not have and a willingness to make political judgments that may seem unbecoming of a court. These limitations raise more profound questions about whether the ICC can speak to those who inhabit the globe’s most desperately marginal spaces. While I am skeptical that it can, it is also unclear that domestic criminal justice actors are better equipped to do so. I conclude by suggesting that it may be more constructive to analyze complementarity through a descriptive lens rather than in grand normative terms. In this vein, I suggest that a “governmentality” framework that focuses on the development of bureaucratic culture may be useful for future research on complementarity.
Keywords: criminal law, international criminal law, international criminal court, jurisdiction, complimentarity, colonialism, post-colonialism, criminal justice, international criminal justice
JEL Classification: K14, K10, K33, K39, K40, K42, K49
Suggested Citation: Suggested Citation
Sekhon, Nirej, Complementarity and Post-Coloniality (2013). Emory International Law Review, Vol. 27, 2013; Georgia State University College of Law, Legal Studies Research Paper No. 2014-18. Available at SSRN: https://ssrn.com/abstract=2440882