Toothless or Cautious? The ICC's Principle of Complementarity
The International Criminal Court is a court designed to prosecute crimes against the world — genocides, war crimes, etc. However, anyone even remotely familiar with the ICC will know that it is commonly criticized as a “toothless” or “symbolic” institution without any real ability to bring horrible people to justice. What is less known, is the principle by which it abides by, which perhaps is the biggest reason why.
The ICC operates on the basis of something called the “principle of complementarity.” According to this stipulation, the ICC will not intervene in the judicial proceedings of any particular individual if a country has demonstrated that they are capable of facilitating court proceedings of their own. Only when there has been an “illegitimate conduction of justice” will the ICC step in with an investigation of their own.
However, the ICC has not been particularly good at identifying when illegitimate conduct has occurred, for a number of reasons. To begin with, states that house genocidal dictators or war criminals are notoriously bad at accurately reporting the nature of how they are addressing these crimes. Dictators have connections to the judiciary, the media, and much of the government apparatus including diplomats and bureaucrats. Countries can say they are “dealing with the situation,” when in reality are doing nothing substantive to hold international criminals to account. The ICC itself is quite under-resourced to be able to investigate whether proper justice is taking place, and consequently will often default to the word of the country, even if there is no actual evidence to suggest they should or should not step in. More importantly, even when the ICC discovers that improper justice has taken place, it is more often than not too late. It takes time to investigate and to determine if legitimate court proceedings happened, and this is time in which dictators and criminals can destroy evidence that points them to their crimes. This is time in which they can flee to other countries that refuse to extradite them, and where they hold asset wealth which allows them to stay hidden forever.
Therefore, the ICC ought to act quickly and immediately in order to prosecute these individuals. This would also likely reduce the problem of insufficient funding. A big reason why countries currently refuse to invest huge sums is because the ICC is believed to be a subsidiary institution that largely serves no purpose beyond symbolism. If it were to abandon the principle of complementarity, this perception would gradually break down. The ICC may have more money, more sophisticated investigative processes, and stronger legal resources to be able to bring people to justice when it is necessary.
The trial of Slobodan Milosevic was groundbreaking for international justice, a watershed instance of when a perpetrator of crimes against humanity was brought before international law. It would be a shame if that trajectory did not continue.