Complementarity remains a guessing game at the ICC

17 June 2015 by Stephanie van den Berg, The Hague (The Netherlands)

Recent cases at the International Criminal Court have revitalized the on-going discussion about when the Office of the Prosecutor (OTP) should step in to demand that suspects be brought to The Hague and when it should let countries handle their own prosecutions.

First ICC prosecutor Luis Moreno Ocampo at March 2011 press conference on situation in Libya, as successor Fatou Bensouda looks on (Photo: Flickr/ICC-CPI)
Image caption: 
First ICC prosecutor Luis Moreno Ocampo at March 2011 press conference on situation in Libya, as successor Fatou Bensouda looks on (Photo: Flickr/ICC-CPI)

The ICC is set up as a court of last resort, one meant to prosecute only those most responsible for atrocities and only when states are unwilling and unable to do so themselves. The key phrase in its founding Rome Statute is that the court is “complementary” to national criminal jurisdictions, which has come to be known as the complementarity principle.

A sentence-based complementarity?

Just last month, the appeals decision in the case against Simone Gbagbo [IJT-183] left commentators questioning why the OTP remains determined to try the former Ivorian first lady while Ivory Coast has already sentenced her to 20 years for acts that are similar though not the same as those she is charged with in The Hague.

“The big issue… is whether a very overstretched court should really be spending precious resources on fighting a battle with Ivory Coast when it was actually willing to put Simone Gbagbo on trial, even if it wasn’t for the same conduct,” Mark Kersten, a researcher at the London School of Economics and the creator of the Justice in Conflict blog, told IJT.

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