Nouen, Sarah M. H. --- "Fine-tuning complementarity" [2011] ELECD 101; in Brown, S. Bartram (ed), "Research Handbook on International Criminal Law" (Edward Elgar Publishing, 2011)

Book Title: Research Handbook on International Criminal Law

Editor(s): Brown, S. Bartram

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847202789

Section: Chapter 9

Section Title: Fine-tuning complementarity

Author(s): Nouen, Sarah M. H.

Number of pages: 26

Extract:

9 Fine-tuning complementarity
Sarah M.H. Nouwen*



INTRODUCTION
Even before the ink of the ICC Statute had dried, the principle of complementarity was iden-
tified as the `cornerstone'1 of the world's first permanent International Criminal Court (`the
Court' or `ICC'). This principle provides that the Court can exercise its jurisdiction over a
case only if the case is not being and has not been genuinely investigated or prosecuted by
any state.2 The principle has been considered a `cornerstone' because it is seen to balance two
fundamental values of international law: international justice and state sovereignty.3 The rule
embodying the complementarity principle determines when the ICC can exercise its jurisdic-
tion in cases over which states could also claim a sovereign right to exercise jurisdiction.
Yet `cornerstone' principles often suffer unhappy fates. When they become generally
known by popular shortcut definitions, the precise provisions establishing the actual princi-
ples are ignored. Complementarity is often described, for instance, as the opposite of primacy,
which is the jurisdictional arrangement in the Statutes of the Tribunals for the Former
Yugoslavia (ICTY) and Rwanda (ICTR), according to which those international tribunals
have priority over national proceedings.4 However, closer examination reveals that both prin-
ciples have the same starting point, namely the concurrent jurisdiction of both national and
international courts over international crimes.5 Similarly, as this chapter of the Handbook will


* Gratitude is extended to Roger M. O'Keefe and Hannah Richardson for their ever useful
comments. The usual ...