6 - The rise and fall of complementarity

Summary

‘Positive’ complementarity is a vision of the Rome Statute embraced by the Office of the Prosecutor in the early years of the Court as a means of generating cases. Based upon a novel interpretation of Article 14, states were encouraged to refer ‘their’ situations, although in practice it was always understood that they were directing the Court to the rebels in an internal armed conflict. It required judges to develop an approach to Article 17 by which they read in the criterion of ‘inactivity’ as a ground for admissibility. The approach worked, to the extent that it provided suspects for the first trials, but it did little or nothing to advance the fundamental principle, set out in the Preamble to the Statute, by which it is ‘the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes…’.

Introduction

Complementarity, it is often said, lies at the heart of the vision of the International Criminal Court. Trial Chamber I has described complementarity as ‘one of the cornerstones of the Statute’. In earlier manifestations of international criminal justice, the issue had not really arisen in the same way. International criminal tribunals have always required some normative framework in order to delineate the cases they are to try from those left to the domestic courts or that simply went unpunished. This has usually taken the form of a division of labour between national and international jurisdictions. It was generally addressed as a jurisdictional issue, rather than a matter for the admissibility of a case.