The Quest for Constructive Complementarity

Abstract

In its early years, the model of a healthy and cooperative synergy between the ICC and domestic states is in danger of being replaced by a model of competition. At present, the Rome Statute obligates states parties to cooperate with the Court in a variety of ways throughout the investigation and prosecution of persons. Those obligations are not reciprocated by countervailing requirements for the Prosecutor or the Registry to consult with, much less cooperate with, states parties. The practice of complementarity may well be the fulcrum supporting the Court’s long term legitimacy; and this principle is all the more important because it is designed to provide intellectual leverage to move non-states party towards treaty accession. The plain text of Article 1 compels the conclusion that the International Criminal Court was intended to supplement the foundation of domestic punishment for violations of international norms rather than supplant domestic prosecutions. The Statute curtails sovereign authority by displacing domestic trials only in exceptional circumstances, and includes detailed procedural guidance designed to balance sovereign enforcement against improper extensions of ICC prosecutorial power. The Court and states parties should be joined in a partnership based on mutual respect and a renewed resolve to end impunity. Such a healthy synergy is by no means assured, and could be undermined by any of three emerging trends discussed herein - 1) the extension of judicial constructs beyond those envisioned by states, 2) an aggressive erosion of complementarity in practice, or 3) excessive politicization of charging decisions. If the Court habitually overrides the discretion of domestic officials and displaces their authority based on its own preferences or the expediency of political considerations, the entire premise of the complementarity principle will have been eviscerated. States parties would be wise to address these disquieting signals. This article concludes by making a series of specific textual recommendations that in the aggregate would go far towards preventing a crisis of confidence and cooperation that could cripple the Court of the future.

Keywords: jurisdiction, sovereignty, International Criminal Court, complementarity, domestic authority, impunity