One Step Forward, Two Steps Back?

I.        Introduction

Kevin Heller’s essay A Sentenced-Based Theory of Complementarity marks a significant contribution to the growing scholarship on the International Criminal Court (ICC) and complementarity.[1] His proposed re-thinking of the complementarity regime is original and helpful in highlighting existing policy dilemmas of ICC practice. A “sentence-based” heuristic is appealing in its clarity and its objective to facilitate effective repression. Nevertheless, like Darryl Robinson,[2] I share some hesitation regarding the central claim of this theory. In my view, the argument that the ICC should focus “exclusively on sentencing” when determining whether “ordinary” crime prosecution is admissible is neither desirable nor manageable in all cases. I will focus on three aspects: The assumptions underlying the central claim, the desirability of a new methodology, and its manageability.

II.     Underlying Assumptions

Heller’s case for a deviation from existing approaches relies on four basic premises: (i) the claim that the ICC admissibility test[3] creates undue pressure to charge international crimes under an international label, (ii) the alleged disadvantages of domestic prosecution of international crimes, (iii) the advantages of a “sentencing” heuristic over threat-based compliance, and (iv) the assumption that “higher” sentences might create “better” justice.[4] All four key assumptions merit further critical reflection.

[1] See Kevin Jon Heller, A Sentence-Based Theory of Complementarity, 53 Harv. Int’l L.J. 85 (2012).

[2] See generally Darryl Robinson, Three Theories of Complementarity: Is it About the Charge, the Sentence, or the Process?, 53 Harv. Int’l L. J. Online 165 (2012).

[3] For a survey, see Jann K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (2008); 1 The International Criminal Court and Complementarity: From Theory to Practice (Carsten Stahn & Mohamed M. El Zeidy eds., 2011); Mohamed M. El Zeidy, The Principle of Complementarity in International Criminal Law (2008); Darryl Robinson, The Mysterious Mysteriousness of Complementarity, 21 Crim. L.F. 67 (2010).

[4] See Heller, supra note 1, at 87–88.