- LAST REVIEWED: 16 November 2016
- LAST MODIFIED: 25 June 2013
- DOI: 10.1093/obo/9780199796953-0071
- LAST REVIEWED: 16 November 2016
- LAST MODIFIED: 25 June 2013
- DOI: 10.1093/obo/9780199796953-0071
Complementarity is a fundamental principle upon which the International Criminal Court (ICC) is premised. As such, it has been subjected to much academic scrutiny, both in terms of its constituting elements and the potential ramifications of its use. Complementarity governs the relationship between the ICC and national legal orders. Article 17 of the Rome Statute allows the ICC to step in and exercise jurisdiction where states are unable or unwilling genuinely to investigate or prosecute, without replacing judicial systems that function properly. “Unwillingness” and “inability” are key concepts in the determination of the admissibility of a case before the ICC. A state may be determined to be “unwilling” when it is clearly shielding someone from his or her responsibility for ICC crimes. A state may be “unable” when its legal system has collapsed. The statute provides some guidance in the determination of these elements but the precise thresholds are subject to much academic debate as well as judicial determination in the emerging case law of the ICC. Moreover, issues relating to fairness, amnesties, pardons, or other nonjudicial mechanisms and their role in the determination of the admissibility of a case before the ICC have also been controversial and merit further exploration, not least because the statute remains silent on how they fit with complementarity. The incentive of avoiding the ICC’s jurisdiction, described also as complementarity’s “catalytic effect,” may not encourage states to investigate and prosecute if the benefits of overseeing national prosecutions are outweighed or negated by the difficulties of engaging in the process of criminal justice for atrocities and the relative incapacity of national institutions. Where inability or unwillingness to investigate or prosecute is encountered, it may be necessary to shift the balance of advantages and disadvantages for and against prosecution in order to facilitate states to fulfill their role under the ICC’s complementarity regime. Over the years, a more positive approach to complementarity has been put forward and the meaning of complementarity as this was foreseen originally has begun to change. Following the Kampala Review Conference, positive complementarity increased in significance, and capacity building has firmly entered the vocabulary of international criminal lawyers. The ability of states to fulfill this role has significance not only for their sovereign equality in the community of states, but also for the effectiveness of the ICC at fighting impunity and delivering justice that is meaningful for victims of mass atrocity.
A number of works discuss the complementarity principle in great detail. The books and articles listed in this section offer a wealth of information not only with regard to the key elements of “unwilling” or “unable” but also on the permutations that complementarity has undergone since its adoption. Miskowiak 2000 offers an interesting early appreciation of the principle with an emphasis on distinguishing it from the subsidiarity principle. Arbour and Bergsmo 1999, Bergsmo 1998, and Benzing 2003 offer a clear, precise, and detailed analysis of the relevant statute articles, necessary for the appreciation of the achievement by the drafters at Rome, and an insight into the complexity of this fundamental concept. Furuya 2009, by contrast, with the benefit of time, provides a succinct exposition of the principle in general, focusing on the emerging practice by the International Criminal Court (ICC). Finally, in recent years a number of academic monographs have focused on exploring almost every aspect of complementarity. The two-volume collection Stahn and El Zeidy 2011 constitutes a major reference point for the treatment of the principle, both in terms of its theoretical underpinnings and with regard to its practical ramifications. Kleffner 2008 also offers an original conceptualization of the complementarity principle, focusing on issues of compliance and correctly emphasizing that complementarity has taken on a life of its own, beyond the strict jurisdictional principle envisioned by the drafters. Similarly, Stigen 2008 focuses on complementarity from a wider international law perspective and compares it also to the concept of primacy that governed the relationship with national courts of the ad hoc tribunals that preceded the ICC. The works below provide expert analysis of the complementarity principle as a whole and, as such, are key to the understanding of the wider ramifications of the principle.
Arbour, Louise, and Morten Bergsmo. “Conspicuous Absence of Jurisdictional Overreach.” International Law Forum du Droit International 1 (1999): 13–19.
One of the first articles on complementarity, it offers an essential analysis of the then-new concept. It poses a number of challenging questions that are still relevant today, such as the meaning of unwillingness and the relationship between the ICC and the UN Security Council.
Benzing, Markus. “The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity.” Max Planck Yearbook of United Nations Law 7 (2003): 591–632.
A well-written, yet somewhat descriptive exposition of the complementarity principle and the procedural framework in which it operates.
Bergsmo, Morten. “The Jurisdictional Regime of the International Criminal Court (Part II, Articles 11–19).” European Journal of Crime, Criminal Law & Criminal Justice 6 (1998): 345–363.
The article provides short commentaries on each of the relevant Rome Statute provisions.
Furuya, Shuichi. “The Principle of Complementarity in Reality: Who Actually Applies It and in What Way under the ICC System?” In Public Interest Rules of International Law: Towards Effective Implementation. Edited by Teruo Komori and Karel Wellens, 293–312. Farnham, UK: Ashgate, 2009.
A brief article that explores the ICC’s practice on complementarity in general.
Kleffner, Jann K. Complementarity in the Rome Statute and National Criminal Jurisdictions. Oxford: Oxford University Press, 2008.
National suppression of core crimes at the domestic level and its implications constitute the starting point for this monograph. The work provides an original conceptualization of the principle of complementarity as a catalyst for State Party compliance. The author further suggests that complementarity takes on a life of its own beyond the formal legal framework of the implementation rules.
Miskowiak, Kristina. The International Criminal Court: Consent, Complementarity and Cooperation. Copenhagen: DJØF, 2000.
This book provides a short overview on complementarity and constitutes an early work on the subject. The distinction between complementarity and subsidiarity is particularly noteworthy (pp. 45–46).
Stahn, Carsten, and Mohamed M. El Zeidy, eds. The International Criminal Court and Complementarity: From Theory to Practice. Cambridge, UK: Cambridge University Press, 2011.
A detailed collection of very interesting contributions on complementarity enhanced by insiders’ views from both the Office of the Prosecutor and the Registry. The book also focuses in great detail on the situations in Colombia, Darfur, Democratic Republic of the Congo, Uganda, and Kenya.
Stigen, Jo. The Relationship between the International Criminal Court and National Jurisdictions: The Principle of Complementarity. Leiden, The Netherlands: Martinus Nijhoff, 2008.
A laudable effort to analyze the complementarity principle in a broad and inclusive manner. Particularly noteworthy is the last chapter of this book in which Stigen attempts to answer the question of whether primacy of the ICC over national courts would have been more desirable.
Users without a subscription are not able to see the full content on this page. Please subscribe or login.
- African Commission on Human and Peoples' Rights and the Af...
- Agreements, Bilateral and Regional Trade
- Agreements, Multilateral Environmental
- Applicable Law in Investment Agreements
- Arctic Region
- Armed Opposition Groups
- Aut Dedere Aut Judicare
- Bandung Conference, The
- Children's Rights
- Civil Service, International
- Civil-Military Relations
- Collective Security
- Command Responsibility
- Common Heritage of Mankind
- Complementarity Principle
- Conspiracy/Joint Criminal Enterprise
- Constitutional Law, International
- Consular Relations
- Contemporary Catholic Approaches
- Continental Shelf, Idea and Limits of the
- Cooperation in Criminal Matters, Cross-Border
- Courts, International
- Crimes against Humanity
- Criminal Law, International
- Cultural Rights
- Cyber Warfare
- Debt, Sovereign
- Decolonization in International Law
- Development Law, International
- Disputes, Peaceful Settlement of
- Drugs, International Regulation, and Criminal Liability
- Early 19th Century, 1789-1870
- Ecological Restoration and International Law
- Economic Law, International
- Effectiveness and Evolution in Treaty Interpretation
- Enforced Disappearances in International Law
- Enforcement of Human Rights
- Environmental Compliance Mechanisms
- Environmental Institutions, International
- Environmental Law, International
- European Arrest Warrant
- Extraterritorial Application of Human Rights Treaties
- Feminist Approaches to International Law
- Financial Law, International
- Foreign Investment
- Freedom of Expression
- French Revolution
- General Customary Law
- General Principles of Law
- Georgia and International Law
- Grotius, Hugo
- Habeas Corpus
- History of International Law, 1550–1700
- Hostilities, Direct Participation in
- Human Rights
- Human Rights and Regional Protection, Relativism and Unive...
- Human Rights, European Court of
- Human Rights, Foundations of
- Human Trafficking
- Hybrid International Criminal Tribunals
- Immunity, Sovereign
- Indigenous Peoples
- Institutional Law
- International and Non-International Armed Conflict, Detent...
- International Committee of the Red Cross
- International Court of Justice
- International Criminal Court, The
- International Criminal Law, Complicity in
- International Criminal Tribunal for Rwanda (ICTR)
- International Criminal Tribunal for the Former Yugoslavia ...
- International Humanitarian Law
- International Humanitarian Law, Targeting in
- International Investment Agreements, Fair and Equitable Tr...
- International Investment Arbitration
- International Investment Law, Expropriation in
- International Law, Aggression in
- International Law, Amnesty and
- International Law and Economic Development
- International Law, Anthropology and
- International Law, Big Data and
- International Law, Climate Change and
- International Law, Dispute Settlement in
- International Law, Espionage in
- International Law, Hegemony in
- International Law in Northeast Asia
- International Law, Marxist Approaches to
- International Law, Military Intervention in
- International Law, Monism and Dualism in
- International Law, Peacekeeping in
- International Law, Proportionality in
- International Law, Reasonableness in
- International Law, Recognition in
- International Law, Self-Determination in
- International Law, State Responsibility in
- International Law, State Succession in
- International Law, the State in
- International Law, the Turn to History in
- International Law, Trade and Development in
- International Law, Unequal Treaties in
- International Law, Use of Force in
- International Regulation of the Internet
- International Territorial Administration
- International Trade and Human Rights
- Intervention, Humanitarian
- Investment Protection Treaties
- Islamic International Law
- Islamic Law and Human Rights
- Jurisprudence (Judicial Law-Making)
- Jus Cogens
- Just War
- Law of the Sea
- Law of Treaties, The
- Law-Making by Non-State Actors
- League of Nations, The
- Lebanon, Special Tribunal for
- Legal Status of Military Forces Abroad
- Liability for International Environmental Harm
- Liberation and Resistance Movements
- Maritime Delimitation
- Martens Clause
- Medieval International Law
- Mens Rea, International Crimes
- Middle East Boundaries and State Formation
- Military Necessity
- Military Occupation
- Modes of Participation
- Most-Favored-Nation Clauses
- Multinational Corporations in International Law
- Nationality and Statelessness
- Natural Law
- New Approaches to International Law
- New Haven School of International Law, The
- Non liquet
- Nonstate Actors
- Nuclear Non-Proliferation
- Nuremberg Trials
- Organizations, International
- Pacifism in International Law
- Palestine (and the Israel Question)
- Peace Treaties
- Political Science, International Law and
- Private Military and Security Companies
- Protection, Diplomatic
- Public Interest, Human Rights, and Foreign Investment
- Rational Choice Theory
- Recognition of Foreign Penal Judgments
- Rendition, Extraterritorial Abduction, and Extraordinary R...
- Russian Approaches to International Law
- Sanctions, International
- Soft Law
- Space Law
- Spanish School of International Law (c. 16th and 17th Cent...
- Sports Law, International
- State of Necessity
- Superior Orders
- Teaching International Law
- Territorial Title
- Theory, Critical International Legal
- Tokyo Trials, The
- Transnational Corruption
- Treaty Interpretation
- Ukrainian Approaches
- Underwater Cultural Heritage
- Unilateral Acts
- United Nations and its Principal Organs, The
- Universal Jurisdiction
- Uti Possidetis Iuris
- Vatican and the Holy See
- Victims’ Rights, International Criminal Law, and Proceedin...
- Watercourses, International
- Western Sahara