The Case Against Complementarity

Abstract

Complementarity has assumed the role of a cardinal principle of the ICC, despite significant disagreement about its implications. It has tended, moreover, to evolve towards an increasingly narrow understanding as a form of subsidiarity, wherein trial by domestic courts is always favoured. This chapter, drawing on a recent rediscovery of the jurisprudential value of the internationalism of international criminal justice, seeks to better understand the role that the case against complementarity has played historically and could arguably continue to play in understanding the ambiguities of complementarity. It argues that international trials and therefore an at least implicit bias in favour of primacy were long taken as given. Not only were international trials supposed to do a range of things better (more impartial, more deterrent, etc), but they were also considered to be the only ones that could do justice to the fundamentally international nature of international crime. Complementarity, in this context, was more in the nature of an after thought, one produced by very peculiar historical and legal circumstances. Arguments about the merits of domestic trials and complementarity had long circulated but remained marginal so long as the sort of international tribunal envisaged did not objectively compete with domestic courts. From the end of the 1980s onwards, international crimes came to be significantly redefined less as crimes against an abstract international legal order, and more as crimes against particular populations rooted in the dysfunction of particular states and taking the form of atrocities. The concurrence of domestic and international courts made the question of distribution of case load unavoidable, but it was specifically the human rights emphasis on trying to remedy impunity that made the insistence on encouraging domestic courts to function so central. It may be, however, that in the process, some of the richness of justifications for international criminal justice was lost. It is suggested that not only did arguments in favour of some sort of primacy never go away but that, in the shadow, the pursuit of internationalism remains one of the key variables to understand why complementarity never quite seems to operate the way it is supposed to. There are real costs to adherence to a narrow concept of complementarity, therefore, in a context where some of the concerns that fed the defence of international criminal tribunals' internationalism continue to animate the challenges that the ICC faces.