Catalysing victim-oriented justice in The Hague and beyond through an inclusive complementarity division: A design proposal

Abstract

The International Criminal Court’s (ICC or the Court) principle of complementarity is key to the ICC’s existence and sustainability due to states’ desire to protect their sovereignty. Yet it impacts how justice for victims is shaped and delivered, and which victims may participate. Implementing complementarity is a multifaceted process and involves several stakeholders, including, ICC organs, states, the accused, and the victims. Each stakeholder has its own unique interests in the process and in complementarity decisions. For example, states and the ICC may want to exercise their respective jurisdictions for various reasons, victims may desire to participate, the accused, as well as victims, may want justice to be served in domestic, regional, or subregional jurisdictions or in The Hague. Managing these diverse and sometimes conflicting interests in complementarity can be complex. Thus, this paper proposes a design strategy for the creation of a neutral and independent ICC complementarity division. Such a division can ensure that victims’ interests can be adequately accommodated in the existing complementarity regime and process, without jeopardizing the rights of the suspect or accused or other interests before the Court. These proposals have their legal basis in the core legal texts of the Court. The paper argues that such an approach to complementarity through the proposed division should realign complementarity with the original intention of the drafters of the Rome Statute (Statute), to end impunity and do justice for victims.