The Unintended Negative Effect of Positive Complementarity

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