The International Criminal Court was established in 2002 with the underlying function of punishing the perpetrators of the most serious crimes of concern to the international community. The ICC is designed to end impunity for war crimes, crimes against humanity and genocide.
The ICC is investigating situations in the Democratic Republic of the Congo, Uganda, Sudan and Kenya, to name a few. Arrest warrants have been issued for rebel commanders such as Joseph Kony and state leaders such as Omar al-Bashir. However, the cornerstone of the ICC is that it is complementary to national justice systems. National jurisdictions have primary responsibility for investigating and prosecuting the core crimes of the ICC. The ICC is empowered to act only when national systems remain inactive or are unable or unwilling to genuinely investigate or prosecute a case.
For the first time in the short history of the International Criminal Court (ICC), a State has requested jurisdiction to conduct a national investigation against the same individuals, for the same incidents, as that which is currently under investigation by the ICC. The Libyan Arab Jamahiriya (Libya) government has challenged the admissibility of the case before the ICC under Article 19, stating it is inadmissible because Libya is actively investigating the case.
Should the Court conclude that Libya is neither unable nor unwilling, it must show deference to Libya’s national jurisdiction. Should Libya hold the trial for those most responsible for the violence that occurred in 2011, their sovereign prosecutorial right would be respected and the post-conflict government will have the opportunity to build a judicial system based upon internationally recognised standards.
So what is the complementarity principle?
Complementary is not defined anywhere in the Rome Statute, but the plain text the Preamble and Article 1, which both state that the ICC shall be complementary to national criminal justice, indicate that the ICC is intended to supplement, not supplant, domestic criminal justice.
Luis Moreno-Ocampo, the first prosecutor of the ICC, said in 2003;
‘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 trails before the court, as a consequence of the regular functioning of national institutions, would be a major success.’
What does the complementarity principle do?
1. Ensures state sovereignty is respected
— The ICC is not a body designed to compete with States; rather, it encourages national proceedings whenever possible.
2. Attempts to reduce the overcrowding of the ICC
— The ICC has limited resources in terms of infrastructure, personnel and financing, and can therefore only prosecute a small number of cases at one time.
— Placing primary prosecutorial responsibility on national jurisdictions eases the workload of the ICC.
3. Giving states primary responsibility ensures efficiency and effectiveness
— States ordinarily have better access to witnesses and evidence and are better placed to arrest suspects than the ICC.
4. It encourages, empowers and assists national jurisdictions to build up their domestic juridical systems
— States are made accountable on a national level.
Relinquishing the Court’s jurisdiction to a willing and able Libya would promote state sovereignty and give Libya the opportunity to build an independent judicial system after decades of dictatorship. The violence and atrocities committed in Libya would be dealt with locally, where the victims live. It would strengthen and encourage autonomy to judicial systems in states that are emerging from conflict, furthering restorative justice within those states. The post-conflict Libyan government would also be provided a sense of legitimacy. Libya’s judicial system is undergoing a historic transformation, and the Court may use proactive complementarity to assist and advise Libya it its efforts. The Court’s decision will have far reaching ramifications on the Court’s relationship with states, and on Libya’s post-conflict nation building efforts.
Burke-White, William W, ‘Proactive Complementarity: The International Criminal Court and Nation Courts in the Rome System of International Justice’ (2008) 49(1) Harvard International Law Review 53
Escritt, Thomas, ‘Libya promises ICC Gaddafi’s son will get a fair trial’, Reuters (online), 9 October 2012
International Criminal Court. Office of the Prosecutor, Informal Expert Paper: the Principle of Complementarity in Practice (2002) Document No ICC-OTP 2003
International Criminal Court. Office of the Prosecutor, Prosecutor’s Submissions on the Prosecutors recent trip to Libya, Document Number ICC-01/11-01/11-31 (5 November 2011)
Markus Benzing, ‘The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity’ (2003) 7(1) Max Planck Yearbook of United Nations Law 591, 1.
Robert Cryer, Hakam Friman, Darryl Robinson and Elizabeth Wilmshurst, An Introduction to International Criminal Law and Procedure (Cambridge University Press, 2nd ed, 2010) 153.
Rachael Young is an undergraduate student at Bond University studying Law and International Relations. Rachael is passionate about international law, and is the current Vice-President of BUUNSA.