International Criminal Law: The Principle of Complementarity

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November 5, 2020
International Criminal Law Questions
1 Explain the meaning and implications of the principle of complementarity on which the work of the ICC is based.
The Principle of complementarity is one of the primary governing principles in the creation and the continuous existence of the International Criminal Courts (ICCs). This principle is based from the Preamble of the Rome Statue of the ICC that expressly states that the body “should be complementarity to national criminal jurisdictions”.[Benzing, Markus. "The complementarity regime of the international criminal court: international criminal justice between state sovereignty and the fight against impunity." Max Planck Yearbook of United Nations Law Online 7, no. 1 (2003): 591-632.]
Generally, despite the lack of express definition from the wording of the statute, subsequent negotiations and annotations provides an apt definition for it. Simply said, the principle of complementarity means that rather than establishing a body that has primary jurisdiction in the litigation of criminal offenses, the ICC should act as a mere support to these bodies particularly in the “prosecution of the most serious crimes of international concern”.
On the one hand, this shows that the ICC does not try to encroach upon the sovereignty of its member states over its criminal laws including the manner of litigation and the sanctions imposed. However, it must be noted that rather than removing the “existence” of such jurisdiction, the principle merely aims to regulate when the court can admit the case (admissibility) or exercise its right to jurisdiction.
On the other hand, this also shows that the court is mandated to act or collaborate with national courts only in specific instances. For one, the law and the treatises provide that the ICC can only act when the crimes are so severe (i.e., war crimes or crimes against humanity) in nature and that the national laws fail to investigate and prosecute its perpetrators.[Rome Statute, Article 5]
Finally, it could be seen from the very language of the provision, that the complementarity principle is not merely permissive but mandatory for the court. This is obvious from the use of term “should” rather than “may” which supports the idea that it was created as a supportive institution. It prevents...