Description
According to the principle of complementarity, the jurisdiction of the International Criminal Court (ICC) is complementary to national criminal jurisdictions, which means that the duty to investigate and prosecute the perpetrators of international crimes belongs primarily to states, and not to the ICC. As such, for the ICC to be able to intervene, a state must be either unwilling or unable to genuinely investigate or prosecute. However, under the Rome Statute, complementarity is more than a technical concept. One of the major innovations introduced by the ICC is a positive understanding of complementarity, which places greater emphasis on prevention, partnership, and dialogue, with the aim of building a broader culture of accountability. Positive complementarity refers to the court’s efforts to encourage states to carry out genuine domestic proceedings, and can be achieved through many different strategies (e.g., monitoring, consulting, outreach, transparency). Although efforts are being made to increase the role of the ICC in engaging with national authorities under the banner of positive complementarity, there is still not enough clarity on how this concept is being interpreted and applied. Inspired by Foucault’s genealogies, this paper aims to write a “history of the present”, by examining how the ICC’s positive complementarity policy came to be through a genealogical lens, challenging the dominant narratives.
