What is the...

Complementarity Principle?

Complementarity is the answer to the question:

If both a State and the International Criminal Court have

jurisdiction, who gets to exercise it over a particular situation?

The principle of complementarity recognizes that States have the first responsibility and right to prosecute.
However, when the State fails to exercise this jurisdiction, a case becomes admissible before the International
Criminal Court (ICC).

This distinguishes the ICC from international criminal tribunals, such as those for the former Yugoslavia and
Rwanda (ICTY and ICTR), which both have primary jurisdiction over cases.

The objective of the principle is to create an international system in which each national system responds
effectively to mass atrocity crimes, with the ICC only intervening when necessary in order to ensure that these
crimes never go unpunished.

g P r in c
in
G u id ip le
s “As a consequence of complementarity, the
Complementarity number of cases that reach the Court should
not be a measure of its efficiency. On the
contrary, the absence of trials before this
Court, as a consequence of the regular
Partnership

Vigilance

functioning of national institutions, would be a

major success.”
Luis Moreno-Ocampo, former prosecutor of
the ICC

Partnership
The idea is to encourage States to effectively
investigate and prosecute mass atrocity crimes
themselves.
The Office of the Prosecutor of the ICC can provide
national governments with support and advice on
how to handle certain cases. The Office and the
State can also agree to a division of labor, allowing
the ICC to focus solely on the cases which the
national government isn't in a position to handle.
Vigilance
The Office of the prosecutor should be able to verify
that States are indeed cooperating and living up to
their obligations.
The idea of partnership shouldn't take away from the
Court's effectiveness and ability to function. Rather,
the ICC should remain vigilant. Perpetrators of mass
atrocity crimes must be held accountable and, if
States are not genuinely trying or able to do so, then
the Court should intervene to fight against impunity.

Does the ICC have jurisdiction?

Just having jurisdiction is not enough...

Can jurisdiction There are three situations in which the ICC can exercise its jurisdiction:
1. The situation is referred to it by the State concerned
be exercised ? 2. The situation is referred to it by the UN Security Council
3. The Prosecutor has decided to initiate an investigation into the situation

Has there been a According to article 16 of the Rome Statute, the United Nations Security Council can
defer a situation for 12 months if it acts under Chapter VII of the UN Charter. A deferral
means that the prosecutor is barred from investigating or prosecuting individuals in a
UNSC deferral ? certain situation. The deferral can be renewed indefinitely.

When a State challenges the admissibility of a case it must show that:

Is the case 1. It is prosecuting "the same individual and the substantially the same conduct as

admissible ? alleged in the proceedings before the Court"

2. That the domestic proceedings are genuine, meaning that the State is able and willing
to investigate and prosecute the individual

Admissibility contested! Two examples:

Libya
On 1 May 2012, Libya challenged the admissibility of the cases against Saif Al-Islam
Gaddafi and Abdullah Al-Senussi.

The Court eventually found that the case against Al-Senussi was inadmissible at the
ICC because the Libyan authorities were both willing and able to prosecute him.

The case against S. Gaddafi, however, was declared admissible because the Libyan
government was not in a position to prosecute him.
Kenya
On March 30 2011, Kenya challenged the admissibility of the cases against
William Ruto, Joshua Sang, Francis Muthaura, Uhuru Kenyatta, Hussein
Ali, and Henry Kosgey.
This was the first admissibility challenge the Court had to decide on.

The Court found that the cases were admissible at the ICC because the
investigations that were taking place in Kenya did not focus on the same
individuals.

Sources
• Agirre, Xabier, A. Cassese, R. E. Fife, H. Friman, C. K. Hall, J. T. Holmes, J. Kleffner et al. "Informal expert paper: The
principle of complementarity in practice." (2003)
• International Criminal Court, https://www.icc-cpi.int/

• Coalition for the International Criminal Court, http://www.iccnow.org/

• International Justice monitor, http://www.ijmonitor.org/