Analyzing the International Criminal Court Complementarity Principle Through a Federal Courts Lens

The signing of the Rome Statute that created the International Criminal Court (ICC) was viewed by many in the international law community as a constitutional moment not unlike the passage of the Judiciary Act of 1789. In giving birth to a new type of legal institution, however, the Rome Statute created a void in the ability of any existing body of law to precisely convey the nature of the ICC. The Court is neither in a direct vertical nor horizontal relationship to State courts, with the result that traditional international or national legal norms do not apply. The UN referral of the Darfur situation to the ICC in March 2005 has highlighted this situation by shining a spotlight on the lack of a coherent policy for determining the admissibility of cases to ICC jurisdiction. Sudan’s status as a defiant non-signatory to the Rome Statute has placed the ICC in the uncomfortable position of deciding whether the situation in Darfur is ripe for jurisdiction or whether the ICC should defer to national proceedings. The American federal courts in relation to state courts initially encountered much the same problems that the ICC is encountering in relation to national courts because the federal court system provided an entirely new way of imagining the American legal structure. Although the comparison is not perfect, the similarities in the situations render the doctrines of federal courts law highly relevant to a study of the manner in which the ICC can interact with States. Federal courts law contains a wealth of doctrines such as exhaustion and abstention that are useful both for explaining ICC deference to State proceedings, a regime known as complementarity, and how or when the ICC can or should deviate from that initial deference