The Unintended Negative Effect of Positive Complementarity

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Abstract

Ending impunity cannot be achieved by international criminal tribunals alone. Therefore, it is important that states will take a significant part in these efforts. The principle of complementarity is aimed to incentivize states to conduct domestic criminal proceedings against alleged perpetrators of international crimes. This article calls for a broader examination of the way in which the principle of complementarity incentivizes domestic actors. It argues that beyond the potential positive effect of complementarity on domestic criminal law, the shadow of the International Criminal Court creates a negative incentive for domestic courts to intervene in constitutional and administrative cases that examine general conduct of hostilities cases. The paper demonstrates this negative effect by examining a shift in the attitude of the Israeli Supreme Court in conduct of hostilities cases. In addition, the paper discusses the ways in which domestic courts attempt to regain their reputation following their increased deference in conduct of hostilities cases.
Original languageEnglish
Pages (from-to)1017-1042
Number of pages26
JournalJournal of International Criminal Justice
Volume18
Issue number4
DOIs
StatePublished - 2020
Externally publishedYes

Keywords

  • IMPUNITY
  • COMPLEMENTARITY (International law)
  • CRIMINAL law
  • INTERNATIONAL crimes
  • INTERNATIONAL Criminal Court

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