Complementarity: Contest or Collaboration? - FICHL

Complementarity and the Exercise of Universal Jurisdiction for
Core International Crimes
the exception and not the norm, since the primary responsibility for the
repression of international crimes resides with domestic institutions. The
Court can stir States to take action by contestual competition over forum
allocation, but it can also encourage collaboration and synergies across
multiple fora. The success of this global justice system will therefore rely
on the balance struck between international and national action; between
incentives and coercion; between contest and collaboration.
The Court has started to prosecute its first cases. At the same time,
the international community appears to be increasingly concerned with
emphasising the responsibility of national authorities to combat impunity.
For some States this may mask a reactive posture to protect vested
interests under the cloak of national sovereignty. But for an increasing
number of States it appears to arise out of concern for the viability of a
sustainable rule of law system. 174
As described above, there are numerous ways in which
complementarity national approaches can be implemented. While the
primary locus of domestic action will tend to reside in the States most
directly affected by the crimes, in many situations it may be premature or
unrealistic to expect countries in the midst of or recently emerging from
massive violence to resort to the investigations and prosecutions of
atrocity crimes. In these situations, the role of third States may become
invoked within the international system. This may take the form of
institutional assistance to those States directly affected by the crimes; the
exercise of universal jurisdiction; and the investigation of individual or
corporate accomplice liability stemming from the territory of a third State.
174 Notably the issue of complementarity, in view of what more States can do to combat
impunity, formed one of the four thematic strands of the stocktaking exercise undertaken
by ICC States Parties at the 2010 Review Conference. See Assembly of States
Parties, Report of the Bureau on stocktaking: Complementarity, ICC-ASP/8/51 (18
March 2010); Resolution RC/Res.1, Complementarity, adopted at the 9th plenary
meeting of the Review Conference (8 June 2010).
FICHL Publication Series No. 7 (2010) – page 132