Edited by Bartram S. Brown
Chapter 9: Fine-tuning complementarity
Sarah M.H. Nouwen* INTRODUCTION Even before the ink of the ICC Statute had dried, the principle of complementarity was identified as the ‘cornerstone’1 of the world’s first permanent International Criminal Court (‘the Court’ or ‘ICC’). This principle provides that the Court can exercise its jurisdiction over a case only if the case is not being and has not been genuinely investigated or prosecuted by any state.2 The principle has been considered a ‘cornerstone’ because it is seen to balance two fundamental values of international law: international justice and state sovereignty.3 The rule embodying the complementarity principle determines when the ICC can exercise its jurisdiction in cases over which states could also claim a sovereign right to exercise jurisdiction. Yet ‘cornerstone’ principles often suffer unhappy fates. When they become generally known by popular shortcut definitions, the precise provisions establishing the actual principles are ignored. Complementarity is often described, for instance, as the opposite of primacy, which is the jurisdictional arrangement in the Statutes of the Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), according to which those international tribunals have priority over national proceedings.4 However, closer examination reveals that both principles have the same starting point, namely the concurrent jurisdiction of both national and international courts over international crimes.5 Similarly, as this chapter of the Handbook will * Gratitude is extended to Roger M. O’Keefe and Hannah Richardson for their ever useful comments. The usual disclaimers apply. This Chapter was last revised in September 2009. 1 See, for example, Report of...
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