A Sentence-Based Theory of Complementarity

Scholars have long debated to what extent the Rome Statute’s principle of complementarity permits states to prosecute war crimes, crimes against humanity, and acts of genocide as ordinary crimes such as rape and murder instead of as international crimes. Two positions dominate the discourse, what I call the “hard mirror thesis” and the “soft mirror thesis.” Proponents of the hard mirror thesis argue that such prosecutions never satisfy the principle of complementarity, because the mere act of prosecuting an international crime as an ordinary crime indicates that the state is unwilling or unable to genuinely prosecute. Proponents of the soft mirror thesis, by contrast, accept that prosecuting an international crime as an ordinary crime does not necessarily mean that the state is unwilling or unable to prosecute, but nevertheless insist that states should prosecute international crimes as international crimes whenever possible, because such prosecutions better serve the goals of the Rome Statute. I challenge both theses in the essay and defend an alternative theory of complementarity that focuses exclusively on sentence. In particular, I argue that any national prosecution of an ordinary crime should satisfy the principle of complementarity as long as it results in a sentence equal to, or longer than, the sentence the perpetrator would receive from the ICC.