A Comment on the Complementary Jurisdiction of the International Criminal Court: Adding Insult to Injury in Transitional Contexts?

The author examines the principle of complementarity on which the jurisdiction of the International Criminal Court (ICC) is based. Unlike its predecessors, the International Criminal Tribunals for the former Yugoslavia and Rwanda, the ICC can only take jurisdiction over a case when a state is unwilling or unable to investigate or prosecute. The Court is thus designed to complement the work of national criminal courts. This article assesses whether this admissibility standard will allow the ICC to complement the work of truth commissions like that of the South African Truth and Reconciliation Commission. It concludes that the prospect of an ICC poised to assert its jurisdiction in cases where countries have chosen to forego prosecution in favour of a South African-style truth commission could undermine the effectiveness of such commissions. Such a prospect might thus dissuade states from utilizing truth commissions, thereby adding insult to already existing injuries in countries undergoing transition from pasts marred by gross violations of human rights