The Complementarity Principle: Balancing State Sovereignty and the Prosecution of International Crimes in Africa

Abstract

This article poses a question as to whether the complementarity principle provided under Article 17 of the Rome Statute provides appropriate tools to balance the rights of state sovereignty with their commitment to an independent international criminal justice system. In all eight situations that the ICC is currently investigating, questions have arisen about whether the quest for justice and accountability for the most heinous crimes of international concern should potentially limit states sovereignty. The purpose of this article is to evaluate the balance between state sovereignty and the International Criminal Court as far as the application of the complementarity principle is concerned, as well as to expound on the position of international law and domestic laws on the immunity of the heads of state in Africa. However, given that, under the Rome Statute, states have the latitude to try these same offences, it may be necessary to investigate crimes in a way that they could do so without necessarily compromising international criminal justice processes. This paper makes a critical discussion on whether the complementarity regime has catered for regional bodies motivated by the AU’s recent anti-ICC declarations and the subsequent establishment of the Africa Criminal Court to complement the national courts of its Member States in prosecuting crimes under the jurisdiction of the ICC. The research aims to critically reflect on the balance between the ICC and the sovereign state. The article has revealed that the implementation of the principle of complementarity poses challenges in implementation and interpretation and thus remains a less effective means of putting an end to international crimes. Furthermore, this paper urges the need for the principle of complementarity to be rethought in terms of clarifying its content and scope.