Clarifying Complementarity: Determining the Legality of Jurisdiction-Sharing Relationships in International Criminal Justice

Kamal Makili-Aliyev & Sara L. Ochs*

One hundred twenty—This is the number of wars currently being fought around the world. Notably, and despite the fact that their intensity varies, conflicts in the Democratic Republic of the Congo, Myanmar, the Occupied Palestinian Territory and Israel, the Sahel region, South Sudan, Sudan, Syria, Ukraine, and elsewhere demonstrate a “consistent pattern of grave and lasting civilian harm” and humanitarian need. The overarching aim of the Beyond Compliance Consortium is to examine what strategies have the most potential to generate compliance and restraint by armed actors—and more broadly, to facilitate full(er) protection—in order to prevent, reduce, and respond to harm and need arising in armed conflict. As such, we acknowledge that many of the concepts that are regularly used to describe lived experiences of conflict and to guide responses to suffering and loss in war are not neutral.

Despite the more than twenty years in which the International Criminal Court (ICC) has been operational, significant issues of interpretation remain regarding critical provisions in its governing legislation, the Rome Statute. Arguably, no provision in international criminal law presents more interpretive complications or complexities than Rome Statute Article 17, which sets forth the foundational principle of complementarity, a concept that generally precludes the ICC from hearing cases that domestic courts are able and willing to prosecute. Notably, it is unclear whether Article 17 permits the ICC to engage in jurisdiction-sharing relationships with domestic-based courts in which both courts prosecute the same crimes stemming from the same conflicts. Determining the legality of these relationships is especially pressing as the ICC has recently undertaken at least one relationship in which it actively shares jurisdiction with a domestic-based court.

Given the immense benefits such jurisdiction-sharing relationships can provide to international criminal justice mechanisms and the victims of international crimes, this Article argues that Rome Statute Article 17 does permit these relationships. The Article then provides a roadmap by which the ICC can obtain clarity on this issue. Specifically, we propose that the most effective method of clarifying Article 17 is for ICC States Parties to seek an advisory opinion from the International Court of Justice that expressly provides for concurrent jurisdiction-sharing relationships between the ICC and domestic-based courts.

*Associate Professor of Human Rights, University of Gothenburg School of Global Studies. Associate Professor of Law, Elon University School of Law.