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

摘要

In the criteria for evaluating whether a case should be admissible before the ICC under Article 17 of the Rome Statute, the Statute does not appear to address national court prosecutions that lack due process out of an overzealousness to prosecute. Yet, international justice should not solely be about defeating impunity for the worst crimes, but also about doing so through fair trials. While this problem does not solely exist for the crime of aggression, the problem may be particularly acute with regard to it. One can well imagine vengeful national courts adjudicating the fate of a captured enemy leader prosecuted for the crime of aggression. ICC States Parties, which did not significantly debate whether the crime of aggression should be subject to a complementarity or primacy regime, may in future years want to do so. States Parties could consider either subjecting the crime of aggression to a primacy regime or amending Article 17, at least for the crime of aggression, to address national court prosecutions that are not independent or impartial due to over willingness to prosecute so that such cases remain admissible before the ICC. Indeed, the ICC may come to be seen as the preferable forum for crime of aggression prosecutions, rather than national courts. The Rome Statute should have sufficient tools to ensure that crime of aggression prosecutions may occur at the ICC if jurisdiction exists, especially where there are due process concerns with national court proceedings.