Is Complementarity the Right Approach for the International Criminal Court’s Crime of Aggression - Considering the Problem of Overzealous National Court Prosecutions

At the first Review Conference on the Rome Statute of the International Criminal Court (ICC), the Assembly of States Parties to the ICC adopted an amendment defining the crime of aggression and conditions for the ICC\u27s exercise of jurisdiction over the crime. Because the definition will be incorporated into the existing framework of the Rome Statute, the crime will be subject to the complementarity provision contained therein. That provision specifies that a case is inadmissible before the ICC if there are national investigations and/or prosecutions, unless the state demonstrates an unwillingness or inability to investigate or prosecute the case. By contrast, the relationship between national courts, for example, and the two ad hoc tribunals is one of primacy. There were good reasons for creating the primacy regime in the context of the ad hoc tribunals, and good reasons for creating the complementarity regime in the context of the ICC, at least as to the three crimes the ICC may currently adjudicate (genocide, war crimes and crimes against humanity). As to the crime of aggression, however, one may well question whether complementarity is always the right approach, in part, because it fails to address national court prosecutions that lack due process out of an overzealousness to prosecute-something that can be anticipated to be particularly problematic vis-a-vis the crime of aggression. This Article explores this problem and proposes various solutions