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18 Sri Lanka J. Int'l L. 301 (2006)
Making Sense of Complementarity: The Relationship between the International Criminal Court and National Jurisdictions

handle is hein.journals/sljinl18 and id is 311 raw text is: (2006) 18 Sri Lanka JIL (No.2) 301

Benjamin Perrin *
The cornerstone of the Rome Statute, that the International Criminal Court (ICC)
is to complement national proceedings, remains the subject of much debate. As
an infant institution, the way that the various organs of the ICC interpret the
complementarity regime will have a lasting impact on its viability. The purpose of
this paper is to develop a theoretical framework to describe the ICC's various
roles in relation to national judicial systems, giving practical meaning to the principle
of complementarity derived from the Rome Statute.
While statutory analysis is helpful in understanding complementarity, little assistance
is offered by the travaux pr~paratoires because the term is meaningless in the
abstract and it was often dressed up to mean different things by various States
Parties. Drawing on the text and structure of the Rome Statute, I will argue that
complementarity is best conceived through the lens of six distinct roles that the
ICC, as an institution, may serve. First, the ICC is a forum of last resort when
national judicial systems crumble and are unable to offer a sufficient forum: it is a
'safety net'. Second, the Prosecutor's proprio motu powers and investigation
procedures provide an impetus for national proceedings to commence: it is a
'catalyst'. Third, once national proceedings are underway, the Prosecutor is
empowered to remain seized of such cases, requiring progress reports from
prosecuting States: it is a 'monitor'. Fourth, owing to the very possibility of an
ICC intervention, States have been compelled to improve domestic mechanisms
for prosecuting crimes within the subject-matter jurisdiction of the ICC: it is a
'passive standard setter'. Fifth, the ICC has a limited but celebrated role of
. Institute of Comparative Law, McGill University, Faculty of Law

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