The Malabo Protocol, the ICC, and the Idea of Regional Complementarity
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The Malabo Protocol, the ICC,
and the Idea of 'Regional
Complementarity'
Sarah Nimigan*
Abstract
The African Union (AU) has taken steps to regionalize international criminal law
through the expansion of the African Court of Justice and Human Rights (ACJHR)
vis-a-vis the Malabo Protocol. The principle of complementarity is a cornerstone of
the Rome Statute of the International Criminal Court (ICC). The Rome Statute crys-
tallizes a complementary relationship between the ICC and domestic legal systems
under Article 17 but makes no mention of regional or ad hoc jurisdictions.
Prospects for including regional jurisdictions within the principle of complementar-
ity are contingent upon a positive judicial interpretation of the principle and clearly
established obligations at each level. It will necessarily require funding and support
by states. Such an approach will contribute to the ongoing development of a robust
system of international criminal justice. In order to effectively resolve the issue of
competing mandates and effective domestic implementation, a cooperative model
needs to be espoused. Although hypothetical at present, the idea of 'regional comple-
mentarity' is one worth thinking about in the context of constructive reform at the
ICC. The prospective ACJHR offers a useful framework to analyse the potential role
of regional mechanisms within the international criminal law project, broadly
considered.
1. Introduction
The principle of complementarity is a cornerstone of the Rome Statute of the
International Criminal Court (ICC).' Complementarity establishes the relation-
ship between the ICC and the national legal systems of states parties. Under
the Rome Statute system, states have the primary responsibility to investigate
and prosecute violations of international criminal law. The ICC is to be 'comple-
mentary' to national jurisdictions, and act as a secondary catch-all when
* PhD candidate, University of Western Ontario, Canada. [snimigan@uwo.ca]
1 Rome Statute of the International Criminal Court, A/CONE183/9 (adopted 17 July 1998, entered
into force 1 July 2002) 2187 UNTS 90; see: Preamble, Arts 1 and 17 ICCSt.
Journal of International Criminal Justice 17 (2019), 1005-1029 doi:10.1093/jicj/mqz040
C The Author(s) (2019). Published by Oxford University Press. All rights reserved. Advance Access publication 5 November 2019
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The Malabo Protocol, the ICC, and the Idea of Regional Complementarity
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