February 12, 2006
Complementarity and the ICC
‘Complemenarity’ is a fundamental principle on which the functioning of the International Criminal Court is based. Under the Rome Statute, which established the Court, the ICC can only exercise its jurisdiction where the State Party of which the accused is a national, is unable or unwilling to prosecute. Hence the term ‘complemenatarity’, which makes the ICC a Court of last resort. Where a national of, say Sudan, is accused, then the ICC will only have jurisdiction over the crime where there is an unwillingness or incompetence of Sudanese judicial institutions to prosecute. The reason this principle came into existence was the fear on the part of many prospective States party that the ICC would become a supra-national criminal court and would result in countries losing domestic control of criminal prosecutions.
There are Sudanese nationals who have been accused of war crimes over the recent alleged genocides which occurred there. There was no possibility that these crimes could be prosecuted domestically until only recently. Now, judicial institutions have been set up to try those accused of war crimes. Opinio Juris has a good potted commentary and link.
My philosophical objection to this principle is that the countries in which war crimes are committed are exactly those which require a court like the ICC. For example, there is little chance that a French national will be accused of war crimes, but if they were, I would expect French judicial processes were sufficient to prosecute a war criminal.
However, countries like Sudan set up kangaroo courts which are designed so that the government does not have to hand over its officials to the ICC. So, exactly those who the ICC is most required to punish are those who avoid the court’s jurisdiction by having fake trials.
The best illustration of this is a hypothetical example. If John Howard were accused of war crimes, it is unlikely that DFAT would hand him over to the ICC. This is because Australia has sufficient and suitable processes by which Howard would be prosecuted. However, countries like Sudan, with no judicial oversight, have no chance of dispensing the correct justice where somebody is convicted of war crimes. Indeed, it is difficult for those processes to even obtain a conviction.
In my view, the job of the ICC is to be that supranational institution. No country should ‘have a choice’ whether criminals should be prosecuted. Indeed, the principle of complementarity allows a shield to be placed in front of those accused of the gravest crimes against humanity, by allowing their governments (of which they are usually officials or friends) to ‘prosecute’ them for their alleged offences.