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Clarifying the Principle of Complementarity: the ICC Confirms Admissibility of Case Despite Investigation by Kenya

Published on September 14, 2011        Author: 

Chris Stephen is an associate at Volterra Fietta practising public international law. He previously worked as judicial assistant to Lord Hope of Craighead and Lord Mance in the House of Lords (now the UK Supreme Court).

It is trite to state that the jurisdiction of the International Criminal Court (“ICC” or the “Court”) is complementary to the criminal jurisdiction of national courts. Due to both reasons of respect for State sovereignty and the practical constraint of limited resources, it is first and foremost the duty of national courts to effectively investigate, prosecute and punish the perpetrators of the most serious crimes of international concern. Thus it is only when a State fails in that duty, either through an inability or unwillingness to fulfil it, that the ICC may seek to step into the shoes of that State and assert jurisdiction. This is the principle of complementarity.

However, what of the precise content of that principle? When are the investigations or prosecutions conducted by a State deemed sufficient to demonstrate willingness and render a case before the ICC inadmissable? Is this a high threshold to satisfy?

A recent decision of the ICC assists in answering those questions and adds some welcome flesh to the bones of this oft-cited principle. On 30 August 2011, in The Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (ICC-01/09-02/11 OA) a majority of the Appeals Chamber (Judge Anita Ušacka dissenting) adopted a judgment dismissing an appeal brought by the Republic of Kenya challenging the admissibility of the case in light of national investigations.  Read the rest of this entry…