The principle of complementarity under International Criminal Law

Abstract

Prosecution of international crimes rests primarily with national jurisdictions. It is only when they are unwilling and unable to do so that the International Criminal Court will prosecute such crimes itself, making it a court of last resort. The procedures in place are complex and require a proper examination of the Rome Statute and the Rules of Evidence and Procedure. Prosecution of international crimes begins by way of national judicial systems attempting to prosecute perpetrators of international crimes as genuinely as possible. The crimes in question must fall under article 5 of the Rome Statute and within the jurisdiction of the State prosecuting them. Throughout this process, the International Criminal Court will be willing to aid States in interpreting the provisions of the Statute effectively. On the other hand, States which are unwilling to prosecute such crimes in a genuine manner will most likely choose not to co-operate with the ICC. Requesting the International Criminal Court's advice on interpretation and adequate levels of investigations is probably out of the question too. Once the International Criminal Court's Prosecutor determines a State as unwilling to prosecute such crimes effectively, it will assess its own jurisdiction to prosecute such crimes. If the result is a positive one then each case must surpass the admissibility test which is necessary in order for a case to be heard before the International Criminal Court. The same procedure will be applied to States which are unwilling to prosecute international crimes harming the international community at large. The principle of complementarity is at the forefront of effective prosecutions and removing the impunity gap that currently exists. State Parties, the Security Council and the Prosecutor ex officio are also able to refer situations to the Office of the Prosecutor if any State is failing to observe its primary duty to prosecute international crimes. Altogether this is necessary to ensure a system of co-operation, genuine prosecutions and fair trials.