International Criminal Court and Principle of Complementarity

On July 17, 1998 120 states voted to adopt the Rome Statute of the International Criminal Court. Today 104 countries are signatories of the statute. Unlike the International Court of Justice, the ICC will not hear cases between nation-states, but rather will try individuals accused of the most serious crimes under international law, such as genocide, crimes against humanity and war crimes. While the U.S. under Clinton was supportive of the ICC, the Bush administration has been antipathetical to it for understandable reasons. This has created emergence of a two-tiered system in the human rights law: signatories and non-signatories of the ICC. It is important though to examine the principle of complementarity because many non-signatories view the ICC as an 'absolute monarchy.' The jurisdiction of the ICC is complementary to the national jurisdiction of a signatory state. If the state that would ordinarily exercise jurisdiction is unable or 'unwilling' to proceed in a given case, only then can the ICC step in. This is elaborated in Article 17 of the Rome Statute. What matters is a bona fide effort to prosecute for those crimes named in the Statute. This of course implies that states should implement the Rome Statute into their domestic laws so that they can exercise jurisdiction rather than surrender their national to the ICC. This also means that the ICC necessarily needs national cooperation which would in fact improve compliance with international law. So, it is clear those who do not want to ratify the Rome Statute are first of all skeptical of international law and do not want to make it part of their domestic legal process. This is apparent when looking at the list of countries who have joined. Those who are not joining including the U.S. will be outsiders to genuine international law processes that can in fact put a halt to such crimes as genocides and war crimes. If the U.S. wants to lead the world, it must become a nurturer and gardener for international criminal law.