Reframing positive complementarity

doi:10.1017/CBO9781316134115.019

12 - Reframing positive complementarity

Reflections on the first decade and insights from the US federal criminal justice system

from PART III - Analytical dimensions of complementarity

Published online by Cambridge University Press: 05 November 2014

William W. Burke-White

Edited by

Carsten Stahn and

Mohamed M. El Zeidy

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Carsten Stahn: Affiliation:
Universiteit Leiden
Mohamed M. El Zeidy: Affiliation:
International Criminal Court

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Summary

Though originally developed as a means to protect state sovereignty and limit the powers of an international tribunal, complementarity serves critical gate-keeping and case selection functions in the international criminal justice system. Domestic legal systems have well developed means of determining which cases to prosecute, and allocating such cases among courts and tribunals within the system. This chapter revisits the case selection and gate-keeping functions of complementarity through a comparative consideration of mechanisms used to solve similar problems by domestic judiciaries, particularly the US federal judicial system. In so doing, the chapter raises theoretical questions about the purposes and functions of international criminal justice as well as the technical implications of those theoretical choices. The chapter suggests ways that complementarity can be used to allow international criminal tribunals to do better triage, by screening out some cases and striking cooperation agreements or other plea bargains in many more. The chapter suggests how a new theoretical take on complementarity can improve gate-keeping and case selection, plea bargaining and caseloads in the international criminal justice system.

Introduction

Immediately upon assuming office in 2003, International Criminal Court (ICC) Prosecutor, Luis Moreno-Ocampo, stated: ‘As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success’. The Prosecutor's statement embodies what has been described as positive or proactive complementarity, according to which the Office of the Prosecutor (OTP) would encourage national governments to undertake their own investigations and prosecutions of crimes within the Court's jurisdiction. Consistent with the Prosecutor's statement, one could have imagined the ICC training judges in the Democratic Republic of the Congo, prodding the Ugandan government to prosecute Joseph Kony in Kampala, or bolstering the independence of the Sudanese judiciary.

Type: Chapter
Information: The International Criminal Court and Complementarity
From Theory to Practice
, pp. 341 - 360

DOI: https://doi.org/10.1017/CBO9781316134115.019 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2011

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References

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Kass, J., ‘U.S. Attorney's Independence Pays Dividends’ (2003) Chi. Trib. C2 (quoting the senator who appointed Fitzgerald: ‘I think that having an independent US attorney out of reach of the normal power brokers who run Illinois is a major and important change in our state’). A different example is the Department of Justice's reprosecution of Rodney King's attackers, four white Los Angeles police officers who had the venue of their local trial changed to a mostly-white suburb and were acquitted despite damning film capturing their extended beating of King

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Reinhold, R., ‘U.S. jury indicts 4 police officers in King beating’ New York Times, 6 August 1992, A1