Robinson: The Mysterious Mysteriousness of Complementarity

Darryl Robinson (Queen's Univ. - Law) has posted The Mysterious Mysteriousness of Complementarity. Here's the abstract:

This article explores an unusual interpretive disconnect in the discourse on complementarity, and shows how that disconnect is obscuring the most important questions about the relationship between the International Criminal Court (ICC) and national systems.

Several Chambers of the ICC have held that, in the absence of national proceedings, a case is admissible before the ICC. Many commentators regard this position as a ‘gloss’, an ‘invented’ prong, and a departure from the Statute. Interestingly, such critiques are rooted in a sincere, firmly-held and widely-shared belief that Article 17 contains a one-step test requiring either ‘unwillingness’ or ‘inability’. This article demonstrates that, contrary to the popular simplification of the complementarity test, Article 17 expressly provides not a one-step test, but a two-step test, the first explicit question of which is whether a State is investigating or prosecuting the case or has done so. Thus, admissibility-due-to-inaction is not a creative inference or an imaginative gloss; it arises from the literal, unambiguous text of Article 17.

Yet, the complementarity discourse is curiously inverted so that text is decried as 'gloss' and gloss is exalted as 'text'. The popular simplification of complementarity exercises such a powerful grip on the interpretive community that when Court applies the actual Article 17, the Court is accused of ‘departing’ from the Statute and ‘inventing’ new requirements. For some reason, the 55 words of Article 17 that explicitly require a national investigation or prosecution persistently fall into a shared blind spot. While many commentators find it a mystery that the Court believes that a case is admissible in the absence of proceedings, the real mystery is why this proposition is controversial.

Once the interpretive disconnect is exposed and misplaced recriminations about Statute violations are set aside, we discover rich ground for a much more exciting debate about the role of the Court vis-à-vis national systems. For example, how can the risk of States shirking prosecutions be managed? What are the appropriate limits on ‘burden sharing’ arrangements? Such questions are not determined by the Statute text and are as important as any questions resolved in the Rome Statute. It is hoped that this paper will help bring about and contribute to that debate.