I mentioned the critical concept of “complementarity” in my post yesterday on the ICC. The word sounds highly legalistic, but it’s foundational to how the ICC is supposed to work. In short, complementarity means that states – not the ICC – have primary jurisdiction to address alleged violations of Rome Statute crimes. One of the outgrowths of complementarity is the requirement that the ICC Prosecutor notify all parties to the Rome Statute and other concerned states when opening an investigation. This notice allows states to address the allegations domestically, confirming that they have conducted or are conducting a genuine investigation and, as necessary, prosecutions. This process didn’t happen here: the ICC Prosecutor initiated what is essentially a new investigation – and sought arrest warrants against #Israel’s PM and former Defense Minister – without providing Israel with such a notification. Such failure has effectively deprived Israel of its right to assert its primary jurisdiction and demonstrate to the Court that its domestic processes preclude ICC intervention. The ICC Prosecutor’s failure to notify is not a mere formality – it undermines the entire proceedings. Note: complementarity applies to the ICC vis-à-vis all States, both parties and non-parties to the Rome Statute. Israel's expectation that the ICC respect complementarity is in addition and without prejudice to its positions on the ICC's lack of jurisdiction.
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