Whither National Courts? The Rome Statute's Missing Half Towards an Express and Enforceable Obligation for the National Repression of International Crimes

The Rome Statute's complementarity system envisages the exercise of national jurisdiction as the primary means of eradicating impunity. There is, however, no corresponding obligation on states parties to repress international crimes. The only remedy for the unwillingness or inability of national courts to prosecute is the exercise of jurisdiction by the International Criminal Court (ICC). Due to practical constraints, the ICC can only prosecute a small fraction of international crimes. Thus, the absence of an obligation for national prosecution is inconsistent with an effective system of complementarity. Moreover, the limited and disjointed obligations under conventional and customary international law are not an adequate substitute in this regard. In order to gradually complete the complementarity system, states parties should consider adoption of an Optional Protocol to the Rome Statute enshrining an express and enforceable obligation to exercise national jurisdiction.