Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice

When the International Criminal Court (ICC) was established in 2002, States, NGOs, and the international community had extraordinarily high expectations that the Court could bring an end to impunity and provide broad-based accountability for international crimes. Nearly five years later, those expectations appear unfulfilled, due to political constraints, resource limitations, and the inability of the ICC to apprehend suspects. This article offers a novel solution to the misalignment of resources, expectations, and legal mandate of the ICC, arguing that the Court must more actively engage with national governments and encourage States to undertake their own prosecutions of international crimes. The article shifts basic understandings of the ICC’s role through a policy of Proactive Complementarity, whereby the international Court would encourage and, at times, assist States undertaking domestic prosecutions of international crimes. The article examines the legal mandate for such a policy, considers the political constraints on the Court, offers a practical framework for the implementation of Proactive Complementarity in the range of circumstances the ICC is likely to face, and documents early examples of Proactive Complementarity in the ICC’s initial operations. Overall, the Article argues that encouraging national prosecutions within the “Rome System of Justice” and shifting burdens back to national governments offers the best and perhaps the only way for the ICC to meet its mandate and help end impunity