It's a good idea . . . isn't it? : the impact of complementarity at the International Criminal Court on domestic law, politics and perceptions of sovereignty

This chapter examines how the principle of complementarity may impact national law and prosecutorial policy in practice and might therefore be interpreted (sometimes inaccurately) by States in a manner that drives their respective domestic political concerns. This in turn may also politicise the Court itself. By way of illustration, this chapter examines the circumstances leading to Australia’s eventual ratification and implementation of the ICC Statute. Australia had, prior to the establishment of the Court, been a strong supporter; however, in the end, it very nearly did not ratify the ICC Statute, following an emotional and vitriolic debate amongst Government ranks, but also extending to the broader community. The Australian experience demonstrates that, notwithstanding the initial intentions behind its crafting, and the fact that it represented a compromise intended to appease fears that it would unduly impact national political and legal processes, some States may still perceive the principle of complementarity as a threat to domestic sovereignty. As a consequence, therefore, what started out as a foundational principle that facilitated the establishment of the ICC may in fact have come to be (mis)used by States as a tool to oppose aspects of the Court’s activities.