Journal Article

<i>Par in Parem Imperium Non Habet</i>

Beth Van Schaack

in Journal of International Criminal Justice

Volume 10, issue 1, pages 133-164
Published in print March 2012 | ISSN: 1478-1387
Published online February 2012 | e-ISSN: 1478-1395 | DOI:
Par in Parem Imperium Non Habet

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The principle of complementarity undergirds the International Criminal Court’s (ICC) admissibility regime. And yet, in the negotiations leading up to the 2010 Review Conference, delegates did not fully focus on the potential for the addition of the crime of aggression to destabilize the Court’s complementarity regime. The only guidance from the Assembly of States Parties came in the form of two interpretive Understandings that express a subtle preference that the states parties do not incorporate the crime into their domestic codes. If states parties heed this call, which they should, the Court will face situations in which there is incomplete concurrence between the prosecuting state’s domestic law and the ICC Statute given that few states have codified the crime of aggression. Under prevailing interpretations of the principle of complementarity, however, a case would be admissible before the Court if a domestic court were prosecuting atrocity crimes, but not the crime of aggression. This article argues that the Prosecutor should therefore announce in advance of the amendments’ activation the intention to stay his or her hand in the event that genuine domestic prosecutions are going forward on the basis of charges of genocide, crimes against humanity, or war crimes, even if potential domestic aggression charges are not available, are legally barred, or are not forthcoming. The only exception to this general approach should be in cases in which the crime of aggression is the primary or central charge to arise out of a particular situation, such that atrocity crimes are non-existent or largely peripheral. The article thus advocates that the ICC be allowed to exercise a de facto primacy over the crime of aggression vis-à-vis domestic courts, which will retain the ability to take the lead on prosecuting the atrocity crimes. Such a division of labour between the ICC and domestic courts will ensure that to the extent that the crime of aggression is ever prosecuted, it is done in an international, rather than domestic, forum pursuant to a consensus penal definition and a negotiated jurisdictional regime.

Journal Article.  16664 words. 

Subjects: Criminal Law ; International Law

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