A New Paradigm in International Justice: Principle of Complementarity in the Rome Statute

Abstract

Article 1 and 17 of the Rome Statute of the International Criminal Court, 1998 establishes a shared responsibility between national criminal jurisdiction and the ICC to fight impunity. This principle of complementarity ensures national courts have the primary responsibility to investigate and prosecute grave international crimes. The ICC serves as an alternative, intervening only when national courts are unable or unwilling, due to limitations in resources or political interference. This approach respects national sovereignty, a key factor in gaining widespread support for the ICC. Complementarity fosters cooperation, potentially motivating countries to strengthen their own justice systems while guaranteeing accountability. Ultimately, this two-tiered system creates a safety net, ensuring justice prevails for the most serious international crimes. The dissertation follows several research questions to explore the complementarity regime of the Rome Statute, its historical context, potential ambiguities, practical challenges, and its role in achieving accountability. The guiding research questions are – how did the international community respond to core international crimes prior to the establishment of the ICC, were there any judicial mechanisms for holding perpetrators accountable, does the Rome Statute introduce a genuinely new concept referred to as the ‘complementarity principle’ or does it build upon existing legal norms and practices, to what extent do ambiguities exist within the Rome Statute regarding the criteria for determining whether a State is unwilling or unable to prosecute core crimes, how have these ambiguities been addressed in ICC jurisprudence through admissibility proceedings, what are the key challenges, at both the theoretical and practical levels, in applying the principle of complementarity within the ICC framework, are there inconsistencies between the intended purpose of complementarity and its actual application in practice, and, building on the analysis of complementarity, what potential solutions or frameworks can be proposed to address impunity gaps more effectively and ensure accountability for core international crimes? To explore these research questions, the dissertation delves into the concept of complementarity within the International Criminal Court (ICC) framework, adopting an empirical-qualitative approach. Grounded in the Rome Statute of 1998, the research begins by establishing a comprehensive picture of the legal landscape surrounding complementarity. It meticulously analyzes legal sources existing both before and after the ICC's establishment, providing a historical and evolving context. Next, the dissertation dissects the various models of complementarity that have been proposed or debated. It meticulously examines the underlying principles and norms that underpin each model. This in-depth analysis involves a critical evaluation of how these models align with the different legal sources identified earlier. To further enrich the understanding, the study closely examines the ICC's evolving practice of handling cases through admissibility proceedings. These proceedings determine whether a particular case falls within the Court's jurisdiction, often hinging on the principle of complementarity. By scrutinizing these proceedings, the dissertation aims to gain valuable insights into how the concept of complementarity is being interpreted and applied in real-world scenarios. Ultimately, the dissertation aspires to propose a framework for addressing the issue of impunity gaps. This framework will be carefully crafted to align with the core objectives and purpose of the ICC, as outlined in the Rome Statute. By proposing a solution grounded in a deep understanding of complementarity's legal and practical complexities, the research aims to contribute to a more effective system of international criminal justice.