Revised Version of Complementarity Essay on SSRN
I have posted a substantially revised version of my essay “A Sentence-Based Theory of Complementarity” on SSRN. The essay is appearing in two different forms. The long version (23,000 words) — the one I’ve posted — is forthcoming in Volume 53 of the Harvard International Law Journal. The short version (7,000 words), which focuses on the new theory of complementarity I defend, will appear as a chapter of the Ashgate Research Companion to International Criminal Law: Critical Perspectives, which is being edited by Bill Schabas, Niamh Hayes, Maria Varaki, and Yvonne McDermott. Here is the abstract:
Scholars have long debated to what extent the Rome Statute’s principle of complementarity permits states to prosecute war crimes, crimes against humanity, and acts of genocide as ordinary crimes such as rape and murder instead of as international crimes. Two positions dominate the discourse, what I call the “hard mirror thesis” and the “soft mirror thesis.” Proponents of the hard mirror thesis argue that such prosecutions never satisfy the principle of complementarity, because the mere act of prosecuting an international crime as an ordinary crime indicates that the state is unwilling or unable to genuinely prosecute. Proponents of the soft mirror thesis, by contrast, accept that prosecuting an international crime as an ordinary crime does not necessarily mean that the state is unwilling or unable to prosecute, but nevertheless insist that states should prosecute international crimes as international crimes whenever possible, because such prosecutions better serve the goals of the Rome Statute. I challenge both theses in the essay and defend an alternative theory of complementarity that focuses exclusively on sentence. In particular, I argue that any national prosecution of an ordinary crime should satisfy the principle of complementarity as long as it results in a sentence equal to, or longer than, the sentence the perpetrator would receive from the ICC.
As always, comments and criticisms most welcome.