Complementarity as a Legal Principle and as Criteria for Admissibility
Complementarity as a Legal Principle and as Criteria for Admissibility
This chapter addresses the substantive provisions: the Preamble and Article 1, which introduce complementarity as a general principle, and Articles 17 and 20 (3), which translate that principle into criteria for the admissibility of cases before the ICC, including the key notions of ‘unwillingness’ and ‘inability’. These criteria bear the potential of responding to many of the obstacles that hamper effective domestic suppression of core crimes. Conversely, the criteria provide yardsticks for what States have to do in order to retain jurisdiction. However, the detailed nature of the definitions of ‘unwillingness' and ‘inability’ result in some gaps vis-à-vis some situations and considerable overlap in others. With a view to overcome these difficulties in defining the criteria for admissibility, it is suggested that consideration should be given to replace the notions of ‘unwillingness’ and ‘inability’ with the criterion of ‘effectiveness’ of domestic proceedings.
Keywords: Preamble, Article 1, criteria for admissibility, unwillingness, inability, ne bis in idem, insufficient gravity, effectiveness
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