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49 Harv. Int'l L.J. 53 (2008)
Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice

handle is hein.journals/hilj49 and id is 57 raw text is: VOLUME 49, NUMBER 1, WINTER 2008

Proactive Complementarity: The International
Criminal Court and National Courts in the
Rome System of International Justice
William W. Burke-White*
When the International Criminal Court (ICC or Court) was established in 2002, states, nongov-
ernmental organizations (NGOs), and the international community had extraordinarily high expecta-
tions that the Court would bring an end to impunity and provide broad-based accountability for
international crimes. Nearly five years later, those expectations remain largely unfulfilled due to political
constraints, resource limitations, and the limited ability of the ICC to apprehend suspects. This article
offers a novel solution to the misalignment between the Court's limited resources and legal mandate on the
one hand and the lofty expectations for it on the other, arguing that the Court must engage more actively
with national governments and must encourage states to undertake their own prosecutions of international
crimes. It advocates a shift in the ICC's role through a policy of proactive complementarity, whereby the
Court would encourage and at times assist states in undertaking domestic prosecutions of international
crimes. The article examines the legal mandate for such a policy, considers the political constraints on the
Court, offers a practical framework for the implementation of proactive complementarity in the range of
circumstances the ICC is likely to face. and documents examples of proactive complementarity in the ICC's
initial operations. Overall, the article argues that encouraging national prosecutions within the Rome
System of Justice and shifting burdens back to national governments offer the best and perhaps the only
ways for the ICC to meet its mandate and help end impunity.
The establishment of the International Criminal Court in 2002 was ac-
companied by extraordinary optimism for the prospects of international
criminal justice. After the sixtieth state ratified the Rome Statute in April
2002, U.N. Secretary-General Kofi Annan announced that [ilmpunity has
* Assistant Professor of Law, University of Pennsylvania School of Law; Harvard Law School, J.D.
2002; Cambridge University, Ph.D. 2006. The author wishes to thank Luis Moreno-Ocampo and the
Jurisdiction, Cooperation and Complementarity Division of the ICC, particularly Paul Seils, Rod Raston,
Wilbert von Hovel, and Silvia FernAndez de Gurmendi, for their insight and assistance. Thanks are due
to those who read or commented on earlier drafts of this work, including William Schabas, Colleen
Burke, Jenia Turner, Michael Scharf, Carsten Stahn, Veronica Hinsetroza, the participants in the Vienna
meeting of the Association of European Human Rights Institute, and the T.M.C. Asser Institute/Univer-
sity of Leiden Seminar. The author is grateful for research assistance from Adam Pollock and Maryam
Jamshidi. Enormous debt is due to Mohamed El Zeidy for his ideas and contributions. For financial
support, the author thanks the University of Pennsylvania Faculty Summer Research Program. Professor
Burke-White can be reached at wburkewh@law.upenn.edu. Although the author has served as a visiting
scholar in the Office of the Prosecutor of the International Criminal Court, the ideas expressed in this
paper are attributable exclusively to the author.

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