Avoiding Unwillingness: Addressing the Political Pitfalls Inherent in the Complementarity Regime of the International Criminal Court

Abstract

The complementarity principle enshrined in the Rome Statute is the cornerstone on which the International Criminal Court is built. It holds the key to the ICC’s legitimacy, credibility, and ability to act. The complementarity regime was not truly tested until 2011 when the Kenyan Government challenged the admissibility of the ICC’s investigation into the widespread violence that followed the Kenyan general elections in 2007. Both the Pre-Trial Chamber and Appeals Chamber held that the Kenyan case was admissible on the basis that Kenya had not demonstrated sufficiently that it was carrying out national investigations, as required to render the case inadmissible. This paper presents an analysis of both Chambers’ decisions by reference to the role and function of the complementarity regime. It contends that the Chambers’ decisions appear to have been inappropriately influenced by political considerations and consequently failed to give effect to the principles underlying the complementarity regime itself.