Restoring the Balance Between the International Criminal Court and National Jurisdictions: A Critical Examination of the Principle of Complementarity in Action

Having secured its first conviction, received its first unanimous Security Council referral and taken into custody its first then-current head of state, 2011 was by all accounts a year of triumph for the decade-old International Criminal Court. These institutional milestones, however, came accompanied by a significant jurisprudential setback in the form of the Appeals Chamber’s August decision in the Kenya situation. In that case, the government of Kenya had challenged the admissibility of the court’s case against three high-profile Kenyan defendants on the ground that the court should defer to Kenya’s domestic criminal proceedings in accordance with the principle of complementarity. In its first decision on substantive complementarity in four years, the Appeals Chamber emphatically articulated an expansive view of the court’s jurisdiction, holding that (1) a case may be found inadmissible in this court only if concrete domestic proceedings are being brought against the same defendants for the same conduct, and that (2) cases before the court are presumptively admissible unless shown otherwise by the party challenging admissibility. These holdings mark a quiet but highly disturbing shift in the court’s jurisprudence on complementarity, one of the court's cornerstone principles, and could transform the court from a tribunal of last resort to one that may infringe upon the sovereignty of its state parties at will. The admissibility decision in the Kenya situation represents the capstone in a line of cases in which the court has steadily constricted the principle of complementarity and eroded the presumption against admissibility. Substantively, the court has achieved this through elevating the concept of “case” — that is, the requirement that states not only be willing and able to act, as stipulated in Article 17, but that they be acting with respect to the same case as that before the court — in order to invoke complementarity. In so doing, the court has in effect created a third criterion that must be satisfied before a case may be found inadmissible. In practice, the court has used this judicially created criterion as a de facto roadblock to the unwillingness and inability analyses that were thought to be the dual-core inquiries of complementarity at the time that the Rome Statute was ratified. The court has further procedurally bolstered this criterion by laying its burden of proof upon the party challenging admissibility. While the court may have legitimate political reasons for so stretching its jurisdiction, its departure from statutory language and legislative intent sets a dangerous legal precedent for the proposition that a criminal tribunal strictly governed by code may confer more power to itself than was given to it. Moreover, the judicial injection of an ill-defined and highly subjective third factor into the statutorily established two-factor test effectively renders complementarity discretionary and destabilizes the delicate balance that Article 17 was designed to strike between protecting national sovereignty, conserving resources and encouraging domestic prosecutions on the one hand and ending impunity on the other. By over-asserting itself, the court may in fact be fostering state complacence, scaring off non-party states considering acceding to the Statute and undermining the legitimacy of international criminal law as an endeavor. In future cases, the court must seek to minimize the threshold imposed by the "case" requirement and move toward the evaluation of Article 17 admissibility challenges on the narrower statutory grounds of the ability or willingness of national courts to investigate or prosecute.