Defying Gravity: The Development of Standards in the International Prosecution of International Atrocity Crimes

The International Criminal Court (the “ICC”), now one decade old, is still in the process of setting norms as to scope, jurisdiction, and other issues. One issue that has thus far defied resolution is a key issue of jurisdiction: the place of complementarity in deciding whether certain criminal issues impacting international standards or interests should be decided before the ICC or national tribunals. Although the Rome Statute crystallizes definitions of core international crimes that may be tried before the ICC, the process of determining whether to leave jurisdiction with the nation or allowing jurisdiction to the ICC continues to lack structure and the appropriate guidance. Different and conflicting approaches have already been voiced, lending urgency to the project of clarifying complementarity during this norm-setting phase in the work of the ICC. This Article recommends a new normative complementary framework for application of core crimes in national jurisdictions. In doing so, this Article recognizes that the Rome Statute was drafted with the intention of covering a broader range of cases than the ICC is currently handling, including the prosecution of alleged war criminals who were at senior, mid-level, and lower levels of authority in committing such crimes. However, the potential scope of the ICC to reach such actors has been progressively narrowed by prosecutorial discretion, resource constraints, and the lack of norm-setting by domestic courts that would encourage a broad jurisdictional understanding at the ICC. This narrowing is not a new phenomenon, but instead a centuries-old pattern of the international community attempting to define the jurisdiction of international criminal processes broadly, only to see those processes narrowed and limited over time. In order to ensure that the ICC can defy those historical patterns and live up to its potential, States Parties to the Rome Statute must do their part with regard to complementarity by interpreting atrocity crimes broadly thereby enabling the prosecution of more war criminals and assisting the ICC in setting positive norms with regard to its jurisdictional reach