Balancing ‘the International’ and ‘the Domestic’: Sanctions & ICC complementarity

CICJ researchers Beatriz Mayans Hermida and Barbora Holá, recently published the article “Balancing ‘the International’ and ‘the Domestic’: Sanctions under the ICC Principle of Complementarity” in the Journal of International Criminal Justice. In the article, the authors look into the sentencing of international crimes at the domestic level,  the role that they play in the complementarity assessment under the Rome Statute, and on what are the standards on the adequacy of sentences/sanctions for international crimes. Furthermore, they analyze how alternative sanctions designed in transitional contexts can play out in such an assessment. 

As the cornerstone of the International Criminal Court (ICC), the principle of complementarity provides that states have the primary responsibility to investigate and prosecute international crimes, and only when they are inactive, unwilling or unable to genuinely investigate and prosecute the ICC may exercise its jurisdiction. However, the relevance of sentences and sanctions, their severity and modalities in the complementarity assessment is still ambiguous.

Some scholars argue for sentences to play a role in the complementarity assessment but do not elaborate on what an inadequate sanction is and how it can justify the ICC pre-empting a national prosecution. Others mainly focus on pardons or blanket amnesties without addressing reduced or alternative sentences developed in the framework of peace negotiations. The existing gap may stall or complicate peace processes in post-conflict situations under the jurisdiction of the ICC where alternative sanctions can be the only viable way to reach an agreement between the warring parties.