Justice in conflict : principle of complementarity or principle of competition?

Abstract

The establishment of a permanent international criminal court was a necessity and the fear of it infringing on a state’s sovereignty was real and ever present. As a result of this fear the International Criminal Court could not be awarded primary jurisdiction, and a compromise had to be reached in which it would operate under a regime of complementarity. This article focuses on the Simone Gbagbo case, as the first woman to be charged by the Court, with the object of nuancing the principle of complementarity in the various stages of an international criminal trial and the extent to which it portrays the tension of state sovereignty, tracing it from its infant historical or rudimentary practices to the current practice and making the necessary recommendations. All of this will be done by contextualising it all within the Côte d’Ivoire situation, particularly as it relates to complementarity. The article makes recommendations that focus on how and why the ICC should avoid seeking to dictate and impose its prosecutorial strategy on the domestic officials so as to avoid a crisis of its legitimacy being questioned, and the state’s refusal to cooperate with the Court. It concludes with the caution that when the practices of the ICC and its Prosecutor make charging decisions for the state and embrace undermining the prosecutorial discretion of the domestic authorities, then the principle of complementarity will have been officially decimated and the principle of complementarity officially birthed.