Skip to main content Accessibility help
×
Home
Hostname: page-component-59b7f5684b-569ts Total loading time: 0.585 Render date: 2022-09-25T21:16:14.382Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "useRatesEcommerce": false, "displayNetworkTab": true, "displayNetworkMapGraph": false, "useSa": true } hasContentIssue true

4 - It’s a Good Idea … Isn’t It? The Impact of Complementarity at the International Criminal Court on Domestic Law, Politics and Perceptions of Sovereignty

from Part I

Published online by Cambridge University Press:  23 June 2018

Marlene Wind
Affiliation:
University of Copenhagen
Get access

Summary

A fundamental element underpinning the structure and operation of the International Criminal Court (ICC or the Court) is the principle of ‘complementarity’, by which the Court is designed to complement rather than override domestic legal processes. As a consequence, States with appropriate jurisdiction are able to deal with alleged crimes that also fall within the mandate of the ICC instead of the Court doing so itself. Only when such a State is ‘unwilling or unable’ genuinely to do so will a matter potentially be admissible before the ICC. This principle was intended to diffuse any (perceived) threat to or interference with domestic sovereignty arising from the establishment of this permanent international judicial body. It does, however, mean that the Court may be required to make a judgment as to the integrity of certain domestic and political actions. Moreover, for a State to be able to rely on the principle, its national law must allow for the investigation and prosecution of the relevant crimes. In most cases, therefore, the implementation of the ICC Statute by a State will necessitate that its domestic legislative systems enact appropriate national law to formalise the interaction between the international judicial institution and the relevant national legal order for the purposes of dealing with such crimes.

This chapter examines how the principle of complementarity may impact national law and prosecutorial policy in practice and might therefore be interpreted (sometimes inaccurately) by States in a manner that drives their respective domestic political concerns. This in turn may also politicise the Court itself. By way of illustration, this chapter examines the circumstances leading to Australia’s eventual ratification and implementation of the ICC Statute. Australia had, prior to the establishment of the Court, been a strong supporter; however, in the end, it very nearly did not ratify the ICC Statute, following an emotional and vitriolic debate amongst Government ranks, but also extending to the broader community. The Australian experience demonstrates that, notwithstanding the initial intentions behind its crafting, and the fact that it represented a compromise intended to appease fears that it would unduly impact national political and legal processes, some States may still perceive the principle of complementarity as a threat to domestic sovereignty. As a consequence, therefore, what started out as a foundational principle that facilitated the establishment of the ICC may in fact have come to be (mis)used by States as a tool to oppose aspects of the Court’s activities.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2018

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Primary Sources

Secondary Sources

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×