Complementarity and Africa: The promises and problems of international criminal justice

Abstract

The idea of an International Criminal Court (ICC) has captured the legal imagination for well over a century. It became a reality on 18 July 1998 with the adoption of the Rome Statute of the ICC, which entered force on 1 July 2002. After being in existence for just over a year, by November 2003, the court had received more than 650 complaints. A range of organisations and individuals that submitted the first complaints to the prosecutor seem to have fundamentally misunderstood the ICC; to have placed a false hope in the court as a means to provide them justice. The truth is that the court's jurisdiction is limited temporally - it can only exercise jurisdiction on events after 1 July 2002 - and its jurisdiction is limited substantively - it can only consider the most serious crimes of international concern, being genocide, crimes against humanity and war crimes - and until a proper definition of aggression is agreed upon by state parties, it cannot consider complaints about the crime of aggression. Furthermore, the court's jurisdiction is limited geographically. In the case of state parties, the court can exercise jurisdiction over their nationals wherever they may be in the world. But for non-state parties - like the US - the court can only exercise jurisdiction if the guilty American commits his or her crime on the territory of a state party. It is therefore critical to understand the topic that is at issue in this paper : complementarity. Complementarity is perhaps the key feature of the ICC regime. It is thus vitally important to appreciate its significance, and in so doing, to understand both the promises and problems of international criminal justice as exemplified by the ICC.