13 - Too much of a good thing?: implementation and the uses of complementarity

Summary

This chapter seeks to criticize some of the excesses of the International Criminal Court's complementarity regime when it comes to implementation. The argument is that states are being pushed by transnational civil society to harmonize their domestic laws with the Rome Statute in ways that have little to do with the requirements of complementarity and, instead, reflect traditional human rights and rule of law agendas. I identify several ways in which implementation is being used as a sort of ‘Trojan horse’ for these agendas, and then suggest that the reality of complementarity is that the ICC will almost never find a state unwilling or unable simply because of relatively minor qualitative differences in the substantive or procedural law. The only exception is cases where the absence of implementing legislation makes it impossible for a state to exercise jurisdiction over a crime entering the Court's jurisdiction. I conclude with a few thoughts on what complementarity should be: not so much a stick to beat international criminal law laggards, but a device to manage diversity and pluralism in international criminal law.

Introduction

Complementarity has emerged in the last decade as a formidable leverage to obtain implementation. In fact, one could argue that the virtual effect of complementarity via implementation has outweighed, at least so far, the actual jurisdictional operation of complementarity. Complementarity has become part of the way in which international criminal lawyers project a sense of the ‘international criminal law acquis’, a sort of global package of norms that have to be adopted by states that become part of the ICC club.