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.
