The Unintended Negative Effect of Positive Complementarity

Journal of International Criminal Justice (JICJ) (Forthcoming, 2020)

35 Pages Posted: 3 Sep 2020

See all articles by Yahli Shereshevsky

Yahli Shereshevsky

University of Haifa - Faculty of Law

Date Written: August 27, 2020

Abstract

Ending impunity cannot be achieved by international criminal tribunals alone. Therefore, it is important that states will take a significant part in these efforts. The principle of complementarity is aimed to incentivize states to conduct domestic criminal proceedings against alleged perpetrators of international crimes. This paper calls for a broader examination of the way in which the principle of complementarity incentivizes domestic actors. It argues that beyond the potential positive effect of complementarity on domestic criminal law, the shadow of the ICC creates a negative incentive for domestic courts to intervene in constitutional and administrative cases that examine general conduct of hostilities cases. The paper demonstrates this negative effect by examining a shift in the attitude of the Israeli Supreme Court in conduct of hostilities cases. In addition, the paper discusses the ways in which domestic courts attempt to regain their reputation following their increased deference in conduct of hostilities cases.

Keywords: International Criminal Law, Complementarity, ICC, International Law and Domestic Courts

Suggested Citation

Shereshevsky, Yahli, The Unintended Negative Effect of Positive Complementarity (August 27, 2020). Journal of International Criminal Justice (JICJ) (Forthcoming, 2020), Available at SSRN: https://ssrn.com/abstract=3681845

Yahli Shereshevsky (Contact Author)

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

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