The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity

Abstract

Together with the provisions on jurisdiction, the principle of complementarity is the pivotal mechanism to delineate the exercise of jurisdiction by the ICC from that of national authorities, including national courts. Designed to find a balance between state sovereignty and the interest of the international community in the effective prosecution of international crimes, it may well prove to be one of the most contentious features of the Statute in its application. The principle of complementarity has thus been described as essential for the acceptance of the Statute by states, and is often referred to as the underlying principle or the cornerstone of the ICC Statute. The present article seeks to contribute to the discussion on one of the most opalescent notions of the Statute. Starting with an analysis of the rationale of the complementarity principle, it examines the substantive elements contained in Article 17 ICC Statute as well as the procedural framework as set out in Articles 18 and 19 ICC Statute. The article furthermore explores the question of the impact of Security Council resolutions under Chapter VII of the Charter and the possibility of states to waive complementarity.