The principle of complementarity: the admissibility of cases before the international criminal court

Abstract

Regarded as the most important international institution established since the United Nations, the International Criminal Court (ICQ was created to help end impunity. With its jurisdiction based on the principle of complementarity, it will only act when States are found unwilling or unable to investigate or prosecute perpetrators of serious international crimes. The provision that reflects the complementarity principle, article 17, stipulates the grounds for establishing whether a situation or a case is admissible before the Court. The said article defines the unwillingness and inability criteria, but had not provided any directive concerning instances where a State had remained inactive in relation to a crime that is under the jurisdiction of the ICC. Nevertheless, the Pre-Trial Chamber of the ICC held that a case in which a State had remained inactive is admissible. Satisfying the prerequisites of the unwillingness criteria, laid under article 17, is a difficult task which the Prosecutor must bear. It requires examining the genuineness or the bona fide, or the lack thereof, of States in initiating proceedings. Inability, the other criteria of admissibility, appears to have provided clear conditions as when it can be said that a State is unable to carry out a genuine investigation or prosecution. Whilst helpful, inability’s strict guidelines may restrain the admissibility of cases. Apart from the decision made by the Pre-Trial Chamber relating to cases of inaction, there is no admissibility determination applying article 17 which the Court had made. There are, nevertheless, significant questions that can be raised, and which relate to how article 17 might be construed and applied in practice. The essence of this study is to explore those questions and speculate possible answers.