may reduce the sentence based on the factors enumerated in Article 110 (4).
Obligations
States must not interfere with sentences imposed by the ICC, either by reducing or modifying the penalty.
Implementation
States should review their legislation to avoid this possibility.
4. COMPLEMENTARITY OF THE JURISDICTION OF THE ICC
4.1 The Principle of Complementarity of the ICC
The Statute encourages States to exercise their jurisdiction over the ICC crimes. Its Preamble states that the effective prosecution of the ICC crimes must be ensured by taking measures at the national level and by enhancing international cooperation. In addition, it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. Nevertheless, there is nothing explicit in the Statute imposing an obligation to prosecute the ICC crimes. This obligation can be found in other treaties, for some of the crimes listed in the Statute, but not for all of them. Under the four Geneva Conventions of 1949, States Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing grave breaches of the Conventions. Under article 5 of the Genocide Convention, States Parties undertake to enact the necessary legislation to give effect to the provisions of the Convention and to provide effective penalties for persons guilty of genocide. The history of the second half of the 20th century shows us that this obligation was only minimally respected.
Nevertheless, the Statute does not deprive States of the power to prosecute the perpetrators of international crimes. Further, the ICC's jurisdiction defers to that of States Parties. While the Statute does not relieve States of the power to prosecute perpetrators of crimes within its jurisdiction, it institutes a Court that will do so in the event that States Parties neglect to prosecute these criminals or do not possess the means to do so.
Under the principle of complementarity, the ICC only exercises its jurisdiction when States Parties fail to investigate or undertake judicial procedures in good faith, after a crime covered under the Statute has been committed. The ICC cannot hear a case when a State has decided to act.
Exceptions to the principle
However, it is essential that procedures initiated by the State in question be undertaken in good faith, that is, respecting international law. There are therefore several exceptions under which the ICC can hear a case that has already been referred to a State. These are provided in article 17:
- when the State in question is unwilling genuinely to investigate or prosecute;
- when the State in question is unable genuinely to investigate or prosecute;
- when, after investigation, the decision of a State not to prosecute a person is motivated by the desire to shield the person from being brought to justice;
- when, after investigation, the decision of a State not to prosecute a person is motivated by its inability to conduct judicial proceedings.
The ICC becomes involved when there is a lack of either willingness or ability on the part of a State. Under article 17 (2), "Unwilling" means:
- the proceedings were undertaken with the aim of shielding the person in question from criminal responsibility for the crime;
- the decision not to pursue the matter was made by the State in order to shield the person in question from criminal responsibility;
- the proceedings were subjected to unjustified delay which in the circumstances, is inconsistent with an intent to bring the person concerned to justice;
- the proceedings are not or were not conducted independently and impartially, and they were or are being condu
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