Application of the principle of complementarity by the international criminal court, 2002 - 2018

Abstract

The International Criminal Court (ICC) was established for ensuring the effectiveness of bringing the perpetrators of international crimes to justice. In addition, the ICC plays its role in order to promote the rule of law in the international community. To archive these ultimate goals, the Rome Statute of the International Criminal Court outlines its role as a court of the last resort by emphasising states themselves are primarily responsible for the prosecution of international crimes. The main duty of the Court is to complement the proceedings at the national level of the state concerned (the principle of complementarity). The ICC will step in to intervene to investigate and prosecute the crime of genocide, crimes against humanity, war crimes, and the crime of aggression, only when the justice cannot be achieved at the national level due to the unwillingness or the inability of the state concerned. The principle of complementarity is outlined article 17 of the Rome Statute as the criteria for admissibility of a case. The complementarity determination will be done at two main stages of the ICC proceedings: the preliminary examination stage and the admissibility stage. At the preliminary proceedings, the Court will determine the principle of complementarity, for the authorization of an investigation into a situation. Then, at the admissibility stage, the complementarity test will be assessed, for rendering the admissibility determination of a case. In this regard, the Court will determine national proceedings of the state concerned, the same-case test (person and conduct), the willingness, and the ability of the state concerned. If all of these criteria for admissibility are satisfied, the Court will render the case inadmissible. This dissertation aims at examining the complementarity provision under the Rome Statute, analysing the dynamic application of the principle by the Court during 2002-2018, and scrutinising the problems and challenges faced by the Court. The result of the analysis demonstrates the dynamism of the application of the principle of complementarity. However, the inconsistency of the dynamic application, in turn, challenges the effectiveness of the ICC complementarity system as well as the credibility and legitimacy of the entire ICC system. The study, therefore, aims at providing appropriate measures to ensure more effective and more coherent of the application of the principle of complementarity by the ICC.