The International Criminal Court: Complementarity

In one line

A case is inadmissible where a State with jurisdiction is investigating or prosecuting it, or has investigated and decided not to prosecute, unless that State is unwilling or unable genuinely to act, or where the person has already been tried, or where the case is not of sufficient gravity.

Article 17(1): the four grounds of inadmissibility

The Court SHALL determine that a case is inadmissible where:

(a) it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) it has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) the person has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20(3);

(d) the case is not of sufficient gravity to justify further action by the Court.

Note the burden. The Court must find inadmissibility where a ground is made out, so the default is national jurisdiction and the Court proceeds only when a ground fails.

And note the word "genuinely" in (a) and (b). A State can defeat complementarity by conducting a real investigation, and cannot defeat it by conducting a sham one. That single adverb is what makes the article work.

Article 17(2): unwillingness

Three indicators, to be assessed having regard to the principles of due process recognized by international law.

(a) the proceedings or the national decision were made for the purpose of shielding the person concerned from criminal responsibility;

(b) there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

(c) the proceedings were not or are not being conducted independently or impartially, and were conducted in a manner inconsistent with an intent to bring the person concerned to justice.

The common thread is intent. Each limb asks whether the State means to bring the person to justice, so the test is purpose and not competence.

The reference to due process cuts both ways. Proceedings that violate the accused's rights may show a lack of independence and impartiality, so a State cannot defeat the Court by a show trial that convicts.

Article 17(3): inability

Whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony, or otherwise unable to carry out its proceedings.