Pull and Push — Implementing the Complementarity Principle of the Rome Statute of the ICC Within the African Union: Opportunities and Challenges

Abstract

The complementarity principle of the Rome Statute of the International Criminal Court (ICC) is an international legal principle that governs the relationship between two; sometimes; contrasting international principles of law; namely sovereign equality of States and the international community’s duty to end impunity for international core crimes. Article 17 of the Rome Statute envisages that States maintain primary jurisdiction to investigate and prosecute international crimes; while the ICC’s jurisdiction to prosecute when States are unwilling or genuinely unable to carry out such investigations or prosecutions constitutes the exception. This article provides an analysis of this principle in the context of the institutional; normative; and policy framework for its domestic implementation within the African national legal orders. This article contends that at times of increasing tensions between the African Union (AU) and the ICC; AU States signatory to the ICC must become proactive in terms of furthering their commitments to fully cooperate with the ICC and the international community. Building on the evidence in literature; this article elaborates on how complementarity can ideally function in practice in an AU context; thus creating a tension-free relationship between the ICC and national legal systems in Africa. It suggests that the relationship should be conceived as one of complementarity and interdependence; with an assured acknowledgement of the cultural specificities of today’s Africa.

Keywords: Rome Statute, ICC, AU, Complementarity, International Criminal Justice

JEL Classification: K33, K40, K49, K39, K19