The Complementary Jurisdiction in the Jurisprudence of the International Criminal Court: The Sameness of Person and Conduct

After two decades of practice, the relationship between the International Criminal Court (ICC) and domestic jurisdictions is still a matter for debate. Under the complementarity principle, states’ action prevents the ICC to step in. However, such an action should be qualified. According to the ICC’s jurisprudence, states should prosecute the same case before the Court if they intent to dis-activate the ICC’s jurisdiction. The ‘same case’ standard requires sameness in ‘person’ and ‘conduct’ as constitutive elements of a case. The same person test requires states to prosecute exactly the same suspect wanted by the Court. As to the same conduct test, the Appeals Chamber stipulates that the conduct could be substantially the same. This article seeks to find out the meaning of the ‘substantially same conduct’. According the Appeals Chamber, the substantial sameness means that in prosecuting a case the legal characteristic of the conduct does not need to be the same. However, the Pre-Trial Chamber in the Libya situation goes further, and states that ‘the substantial sameness’ allows states to choose incidents different from those selected by the Court. The lower-level Chamber’s opinion seems to be more consistent with the complementarity principle. The ICC should refrain from competing states in selecting cases. This approach requires a broad interpretation of the same conduct test.