Examining the Complementarity Principle of the International Criminal Court

Abstract

The Rome Statute of the International Criminal Court adopted on 17 July 1998 established the International Criminal Court (ICC) vested with the inherent jurisdiction over international war crimes and crimes against humanity as outlined in Articles 5 to 7 of its Statute. In the same vein, states within the international community have to prosecute these crimes under international customary law. The resultant effect is that the jurisdiction of national courts runs concurrently with the jurisdiction of the ICC over these crimes, such as the crime against humanity, genocide, war crimes, and the crime of aggression. This, however, raises the issues of precedence of jurisdiction identified with the operation of the previous international criminal tribunal in the former Yugoslavia and Rwanda, which had primacy in the exercise of jurisdiction over national courts of states where they operated. However, the jurisdiction of the ICC is founded on the complementarity principle, which gives importance to the national court over international crimes. Though not necessarily a new concept, the complementarity principle has been espoused in several decisions of the Court. This principle is expounded by the provisions of the establishing instrument of the Court. This article seeks to examine the complementarity principle of the ICC as articulated in the Rome Statute. It also examines the provisions of Article 17 of the Rome Statute concerning the jurisdiction of the ICC over international crimes and the duty of state parties to prosecute these crimes. It concludes on the premise that the ICC only wades in when a state is unwilling to launch an investigation and prosecution of any situation. The research methodology adopted in this study is the doctrinal approach. The doctrinal research method has been adopted for this research because it is conducted in books. Primary and secondary sources of material such as legislation, case law, journal, articles, newspapers, textbooks, and the internet were also read, analysed, and applied to the study.