This Essay examines the strengths and weaknesses of the complementarity principle. The Essay then considers reconceptualizing the “success” of the ICC from an expectation of adjudicating cases to an expectation of fostering national prosecutions. If the ICC’s role is viewed through the lens of increasing the capacity of national jurisdictions to adjudicate international crimes, the measures of the ICC’s success will move from its own prosecutions to efforts to educate, assist, and facilitate national prosecutions. The focus on assisting in the development of national capacity is sometimes called “positive complementarity.” This emphasis, in turn, should suggest a different strategy for the ICC in developing national capacities. Recommendations for how the ICC can increase its role in developing national capacities are proposed, including the establishment of an Institute or Center. While complementarity could prove to be either a strength or a weakness, the Essay concludes that, with a revised definition of success and a stronger focus on capacity building, complementarity likely will prove to be a strength of the ICC as an institution.
ICC, International Criminal Court, international crime, complementarity, prosecution, national capacity