THE INTERNATIONAL CRIMINAL COURT AND PURSUIT OF LEGAL JUSTICE: PROBLEMATIZING COMPLEMENTARITY

Abstract

The study tried to analyze the challenges and limitations that the International Criminal Court has faced because of different legal, factual and other restrictions obstructing it from pursuing its aim of meeting the highest legal standards of independence, effectiveness and fairness expected by the International Community and as a result to bring about legal justice. The International Criminal Court (ICC) exercises its authority on crimes under its jurisdiction, as a means of last resort, after all the available judiciary remedies in the national jurisdiction failed. It is when national courts prove “unwilling” or “unable” to investigate or prosecute the defendant, that the ICC can require the national government to surrender the targeted perpetrator to the Court. At this juncture, the principle of complementarity which rests on two basic pillars, namely, safeguarding respect for the primary jurisdiction of states, and efficiency and effectiveness to put an end to impunity comes in to play. However, the International Community’s decision to incorporate the complementarity principle in the preamble of its final draft statute was intended to provide plausible compromise between national sovereignty and the court’s jurisdiction. The complementarity appears as a mechanism devised to maintain the balance and shape the Court’s operational dynamics. The ICC, on the other hand, teeters between values of sovereignty and internationalism. As the international criminal institution and national courts have concurrent jurisdiction over the most serious international crimes, there inevitably will be conflicts between the two jurisdictions. Consequently, the principle of complementarity, at the same time, creates a curious pair of conflicting forces and hence a dilemma for the Court itself. One perspective to these conflicting forces stresses that the ICC limits itself in exercising jurisdiction without the consent of a sovereign government that could otherwise exercise jurisdiction on its own. Accordingly, the court seeking to exercise jurisdiction in a hostile way: trying to exercise jurisdiction against states actually trying to conduct their own proceedings is seen to have proved very far from reality. If anything in the ICC’s cases, states evidence no intention of trying certain crimes even mock proceedings for the purpose of holding off ICC jurisdiction. Thus, there is a paradox between the creation of the ICC’s exercise of sovereignty and that of the nations. The study documents that ICC has had subject matter jurisdiction and admissibility regime which is restricted by the preconditions set on its exercise of temporal jurisdiction. The objectives of the Principle of Complementarity are to serve as complementary to the national criminal jurisdictions of the states in the world. The Complementarity Principle also appears as a mechanism devised to maintain the balance and shape the Court’s operational dynamics. However, this Principle has impact on the states’ sovereignty in that the ICC encroaches upon their sovereignty. Thus, the ICC has been challenged by lack of support and cooperation for effective enforcement of its decisions and legitimacy on the part of the states which emanate from the gaps and challenges of the Principle of Complementarity as well as from the Court’s political nature. These may, in turn, affect justice and rule of law at international level. It can be concluded that the ICC has jurisdiction limitations and challenges to effectively enforce its decisions and legitimacy – ‘toothless Court’. Therefore, comprehensive jurisdiction measures such as the practices of diplomatic cooperation of the states as a golden thread that underlies the Rome Statue using possible and plausible should be taken, and the Court should also be assessed in-depth based on different international criminal cases in different socio-cultural, economic and political contests from all corners of the world.