International

Criminal Law
Review

International Criminal Law Review 9 (2009) 531–545 brill.nl/icla

The Relationship between State Sovereignty and the

Enforcement of International Criminal Law under the
Rome Statute (1998): A Complex Interplay

Manuela Melandri*
University of Lancaster, UK

Abstract
This article explores the relationship between state sovereignty and the enforcement of international
criminal law under the Rome Statute of the International Criminal Court. This doing, it attempts
to map out the ambivalent and sometimes contradictory roles that different typologies sovereignty
play in advancing or hindering the enforcement of international criminal law. After a brief survey
of the literature on the debate over ‘international law vs. state sovereignty’, the paper focuses on one
specific aspect of the newly established ICC: the conditions for case admissibility. The analysis will
show that the relationship between state sovereignty and international criminal justice is a dynamic
and complex one, which needs to be understood and contextualized within the current system of
international relations.

Keywords
International Criminal Court; complementarity; International Criminal Justice; admissibility

Introduction

The International Criminal Court (henceforth the “Court” or ICC) is an interna-

tional criminal tribunal with the power to exercise jurisdiction over individuals
allegedly responsible for the most serious crimes of international concern. The
Court was created with the adoption of the Rome Statute of the ICC1 at a six-
week Diplomatic Conference held in Rome in July 1998. Following the sixtieth
ratification, with unexpected rapidity, the Statute entered into force on 1 July
2002 and the Court was set up shortly after.2 This newly created mechanism is a

*) An earlier version of this paper was submitted in partial fulfilment of the requirements for the
degree of LLM at Lancaster University. Thanks to Professor Peter Rowe for insightful comments
and to the Peel Studentship Trust, Lancaster University, for financial support.
1)
Rome Statute of the International Criminal Court, in A/Conf.138/9 (reprinted in 37 ILM (1998),
999. Hereinafter, the Rome Statute or Statute.
2)
William Schabas, “International Criminal Court: The Secret of Its Success”, 12(4) Criminal Law
Forum (2001) 415-28, 416.

© Koninklijke Brill NV, Leiden, 2009 DOI 10.1163/157181209X457974

532 M. Melandri / International Criminal Law Review 9 (2009) 531–545

permanent instrument for the enforcement of international criminal law in rela-

tion to the “core crimes” derived from the legacy of Nuremberg. Article 5 of the
Rome Statute indeed confers the Court jurisdiction over war crimes, crimes
against humanity, genocide and the crime of aggression (although the Court is
currently unable to exercise its jurisdiction on the latter due to a lack of an agreed
definition under the Statute).
For many, the ICC can be considered the most significant development in the
history of international criminal law, lauded as “a means to promote the rule of
law, to render accountable the perpetrators of the worst atrocities and to deter
further abuses”.3 Despite these positive views and the ambitious aims to “put an
end to impunity and to contribute to the prevention of the most serious crimes”,
as specifically set out in the Statute Preamble, concerns have been raised about the
ability of the Court to work effectively. Firstly, one problem is the relationship
between states and the ICC, which is likely to be a complex and multifaceted one,
not least, because of the inherent tensions between the needs of international
criminal justice to operate effectively and the doctrines of state sovereignty.
States have traditionally been very reluctant to “internationalize” the processes
of accountability for serious violations of humanitarian law,4 not surprisingly,
given that jurisdiction has always been considered one of the core components of
what constitutes state sovereignty.5 Despite this, it was ultimately through an act
of sovereignty that states conferred jurisdiction to the Court. Interesting ques-
tions arise therefore on whether states, by becoming parties to the ICC, have
surrendered a degree of their sovereignty in favour of the Court.
This article does not mean to offer an all-encompassing assessment of the
extent to which states give up their sovereignty on entering the ICC, because a
wide debate has already emerged on this issue. Instead, the purpose of this piece
is to sketch out some of the complexities inherent in the tensions between the
principle of state sovereignty, and the needs of international criminal law to func-
tion effectively and in accordance with the Rome Statute. In so doing, the discus-
sion will focus particularly on the modalities through which the Court may
exercise its jurisdiction under the principle of complementarity.6 The principle

3)
Bruce Broomhall, International Criminal Justice and the International Criminal Court: Between
Sovereignty and the Rule of Law (Oxford: Oxford University Press, 2003), p. 1. See also Schabas,
2001.
4)
Antonio Cassese, “On the Current Trends Towards Criminal Prosecution and Punishment of
Breaches of International Humanitarian Law”, European Journal of International Law 9(1) (1998)
2-17, 6.
5)
Ian Brownlie, Principles of Public International Law, 6th ed. (Oxford: Oxford University Press,
2003), p. 287.
6)
Another interesting issue to explore would be the relationship between states and courts under
the cooperation regime set up by the Rome Statute. However, this is beyond the scope of this
article.
 M. Melandri / International Criminal Law Review 9 (2009) 531–545 533

constitutes a key concept for the functioning of the Court, and holds a great
significance at the level of admissibility because this is where the court can exer-
cise its supranatural authority and trump national jurisdictions. I argue that, by
becoming parties to the Court, states not only surrender part of their jurisdic-
tional powers to the Court, but also gain the power to invest their sovereign pow-
ers to enhance the aims of international justice. Further, I suggest that to illustrate
better this complex relationship, the ever-evolving concept of sovereignty needs
to be unpacked and contextualized within the contemporary system of interna-
tional relations. I will conclude by saying that introducing an empirical perspec-
tive of what is sovereignty has the merit of enriching and positively affecting the
debate in question.
The article is divided into four parts. Section1 provides a brief summary of the
debate over “international criminal law vs. state sovereignty”, and an outline of
the traditional understanding of state sovereignty. Section 2 offers an overview of
the concept of complementarity, and engages with one key aspect of the comple-
mentarity regime: the criteria for admissibility set out under Article 17 of the
Rome Statute. Section 3 moves on to consider contemporary notions of sover-
eignty, and discusses how their understanding may contribute to the debate pre-
viously considered. The final section offers concluding remarks on the ambivalent
character of the relationship between state sovereignty and international criminal
law, and how a unilateral understanding of state sovereignty as the enemy of
international accountability is overall reductive, under the current system of
transnational relations.

1. International Criminal Law vs. State Sovereignty

International criminal lawyers and scholars generally tend to see state sovereignty
as the enemy of international accountability, an expression of political power
against the rule of law, and a potential obstacle to achieving criminal justice.7 This
is synthetically expressed in the words of Cassese, who argues that either one sup-
ports the international rule of law, or one supports state sovereignty, as there is “a
basic dilemma facing international tribunals: prosecution and punishment or
continued respect for state sovereignty?”8
This juxtaposition originates in the contrast between the aims of international
criminal justice and the traditional understandings of state sovereignty. According
to the definition proposed by Oppenheim in 1905, sovereignty comprises the

7)
See Robert Cryer, “International Criminal Law vs State Sovereignty: Another Round?”,16 (5)
European Journal of International Law (2005) 979-1000, at 980.
8)
Cassese, 1998, p. 9.
534 M. Melandri / International Criminal Law Review 9 (2009) 531–545

power of a state to exercise supreme authority over all persons and things within
its territory and citizens.9 Criminal jurisdiction clearly constitutes a basic element
of this authority. However, this idea of sovereignty as absolute control was re-
dimensioned in the aftermath of World War II, first and foremost by the develop-
ments of international law achieved at Nuremberg. The Nuremberg Charter
indeed “pierced the veil” of state sovereignty by introducing a new relationship
between the individual and the state, and between the state and the international
community. The imposition of international criminal responsibility for core
crimes committed by individuals in the name of the state, gave life to the prin-
ciple that individuals have rights directly under international law, and established
the subordination of state sovereignty to the core values of the international com-
munity.10 In other words, at Nuremberg it was established for the first time that
international criminal law affects state sovereignty by prohibiting behaviour
which, prior to that, was entirely a matter of state authority as it fell outside the
scope of international law.11
The legacy of Nuremberg is now generally acknowledged, and the prohibition
of international crimes has become a peremptory norm of international law, from
which no derogation is permitted (jus cogens). According to Broomhall, a view has
gained support that Nuremberg also created a duty to prosecute crimes against
humanity and genocide, not just on part of the parties concerned, but on behalf
of the international community on the grounds of universal jurisdiction (as obli-
gations erga omnes).12 Current state practice, however, shows that there is no
international customary rule which obliges states to prosecute international
crimes, or to exercise jurisdiction upon any specific ground.13 A large debate has
thus taken hold on whether the ICC could finally engineer a move towards
accountability in practice.
At present, no consensus exists on the extent to which the ICC represents a
fundamental challenge to sovereignty and a full spectrum of opinions is to be
found on this issue. The most optimistic would argue that the ICC represents a
new era in international law because it provides the grounds for a paradigmatic

9)
See Benedict Kingsbury, “Sovereignty and Inequality”, European Journal of International Law
9(4) (1998) 599-625, 559.
10)
Broomhall, 2003, pp. 42-43; see also Winston P. Nagan and Craig Hammer, “The Changing
Character of Sovereignty in International Law and International Relations”, 43(1) Columbia Journal
of Transnational Law (2004) 141-187, 168-69.
11)
See Cryer, 2005, p. 985.
12)
Broomhall, 2003, p. 56.
13)
Antonio Cassese, International law, 2nd ed. (Oxford: Oxford University Press, 2005), p. 301. El
Zeidy argues instead that the Geneva Conventions of 1949 did impose legal obligations on nearly
all states to repress serious crimes through their national institutions. However, he acknowledges
that the Conventions did not create an international tribunal to try offenders nor establish specific
penalties. Mohamed El Zeidy, “The Principle of Complementarity: A New Machinery to Implement
International Criminal Law”, 23(4) Michigan Journal of International Law (2002) 869-74, 880.
 M. Melandri / International Criminal Law Review 9 (2009) 531–545 535

change in state practice,14 and ultimately for the future establishment of an inter-
national customary obligation to prosecute. Less ambitiously, some believe that
the Rome Statute is, overall, a positive achievement because it gives the ICC suf-
ficient authority to operate so as not to jeopardize the aims enshrined in the
statute.15 Others instead have adopted more cautious positions, remaining more
sceptical of the potential of the ICC for achieving accountability in practice, and
for advancing the rule of law against the power of state sovereignty.16 Finally, at
the other end of the spectrum, one finds the rather disillusioned views of those
who consider the provisions of the Rome Statute to be too “soft”, and thus insuf-
ficient on their own to ensure a good functioning of the court, because too obse-
quious to state sovereignty.17
In the next section I will try to explain why such divergent opinions arose and
may in fact coexist, in the light of some ambiguous provisions of the Rome Statute
governing the relationship between the reach of the court and the powers accorded
to state parties. The aim is not to analyse the Statute in all its substantial and
procedural aspects, clearly an arduous and lengthy task, but to consider specifi-
cally the interaction between states parties and the Court in relation to one par-
ticular issue: case admissibility.

2. The ICC and State Sovereignty

One of the essential features of the ICC, and arguably the most distinctive char-
acter of the court (so that it has been defined as the “cornerstone” of the system),18
is its complementary nature to national jurisdictions. Complementarity itself is
not defined in the Statute, but can be generally understood as the set of rules

14)
See Frédéric Mégret, “Epilogue to an Endless Debate: The International Criminal Court’s Third
Party Jurisdiction and the Looming Revolution of International Law’”, 12(2) European Journal of
International Law (2001) 247-68; and Sadat, quoted in Cryer, 2005.
15)
See Federica Gioia, “State Sovereignty, Jurisdiction, and ‘Modern’ International Law: The
Principle of Complementarity in the International Criminal Court”, 19 Leiden Journal of
International Law (2006) 101-31.
16)
See Broomhall, 2003; John Holmes, “Complementarity: National Courts versus the ICC”, in
Antonio Cassese, Paola Gaeta and John Jones (eds.), The Rome Statute of the International Criminal
Court: A Commentary, (Oxford: Oxford University Press, 2002); Juan Carlos Ochoa, “The Settlement
of Disputes Concerning States Arising From the Application of the Statute of the International
Criminal Court: Balancing Sovereignty and the Need for an Effective and Independent ICC”.
7 International Criminal Law Review (2007) 1-43; Dragana Radosavljevic, “An Overview of the
ICC Complementarity Regime”, 3(10) Review of International Law and Politics (2007) 96-114.
17)
Antonio Cassese, “The Statute of the International Criminal Court: Some Preliminary Reflections”,
10(1) European Journal of International Law (1999) 23-31.
18)
See Markus Benzing, “The Complementarity Regime of the International Criminal Court:
International Criminal Justice between State Sovereignty and the Fight against Impunity”, 7 Max
Planck Yearbook of United Nations Law (2003) 591-632, 593; and Holmes, 2002.
536 M. Melandri / International Criminal Law Review 9 (2009) 531–545

governing the relationship between the Court and national jurisdictions.19 In the
Preamble of the Statute, and in Article 1, it is emphasized that the Court “shall be
complementary to national criminal jurisdictions”,20 meaning that national courts
are granted primacy over prosecution and the Court shall act only when domestic
authorities fail to do so. In this aspect the ICC has detached itself from the prac-
tice of its predecessors, the International Criminal Tribunals for the Former
Yugoslavia and Rwanda (ICTY and ICTR respectively), because those bodies
were indeed granted primacy over national courts.
The rationale put forward to explain why the drafters at Rome decided that the
Court should have a complementary (or subsidiary) approach to national courts
is manifold. Firstly, it was to acknowledge that national authorities are better
placed to collect the necessary evidence and to arrest suspects.21 Secondly, it was
a matter of the “sustainability” of the project. The drafters considered it inappro-
priate for the Court to be flooded with cases from all over the world, given its
limited financial resources and infrastructures.22 Thirdly, the system was designed
to encourage states to exercise their jurisdiction over international crimes.23 Last,
but not least, the principle of complementarity was deemed, essentially, to repre-
sent an attempt to find a compromise between respect for state sovereignty and
the needs of international accountability.24
Commentators argued that through the principle of complementarity, drafting
states essentially aimed to ensure that they could keep control of the situation by
acting as primary players.25 With this in mind, it is important to remember that
the ICC was created by means of a multilateral treaty, the Rome Statute, to which
states became parties on a voluntary basis. Hence, while in creating the Court
states have accepted that the ICC may exercise some of their sovereign powers –
namely the right to exercise jurisdiction on their behalf – the complementarity
principle acts as a fundamental safeguard to ensure that national authorities pre-
serve primacy, leaving the ICC limited power to act only whereby irresponsible
states refuse to prosecute their own nationals or are unable to do so.26
The complementarity principle is thus the pivotal aspect of the relations
between state parties and the Court, and is what will determine whether the ICC

19)
Gioia, 2006, p. 1096.
20)
Article 1, Rome Statute (1998).
21)
Cassese, 1999, p. 12.
22)
Antonio Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), p. 351.
23)
Benzing, 2003, p. 596.
24)
See Olympia Bekou, “The “Complementarity Regime” of the ICC”, in Weltpolotik.net (2006);
Benzing, 2003, pp. 595-600; Xavier Philippe, “The Principles of Universal Jurisdiction and
Complementarity: How do the Two Principles Intermesh?”, 88 (862) International Review of the
Red Cross (2006) 375-98, 380-81.
25)
Philippe, 2006, p. 381.
26)
Michael Newton, “Comparative Complementarity: Domestic Jurisdiction Consistent with the
Rome Statute of the International Criminal Court”, 167(1) Military Law Review (2001) 20-73, 26.
 M. Melandri / International Criminal Law Review 9 (2009) 531–545 537

will ultimately interfere with the sovereign prerogatives of states, or will coexist in
a constructive and beneficial relationship with state parties.27 For instance, schol-
ars and practitioners have already warned that complementarity may lend itself to
abuses, if used by states as a shield to obstruct international justice.28 In the fol-
lowing paragraphs we will look more closely at some of the rules which govern
complementarity in relation to the admissibility of cases to the ICC. The com-
plementarity principle does indeed hold a great significance at the level of
admissibility because this is where it is established when the court can seize juris-
diction and set aside national authorities. The aim is to examine how the national
and international spheres interact with each other in relation to this matter, and
how the respect for state sovereignty has been accommodated under the Rome
Statute.

2.1. The Complementarity Regime: Case Admissibility

Article 17 of the Rome Statute defines the substantial grounds on which a case is
admissible to the court, thus regulating when the court can exercise its jurisdic-
tion. The article contains a range of safeguards designed to suppress possible
attempts made by national authorities to protect those suspected of international
crimes. Under paragraph 17(1) (a), a case is inadmissible “when it is being inves-
tigated or prosecuted by a state which has jurisdiction over it, unless the state is
unwilling or unable genuinely to carry out the investigation or prosecution”.29
The article then goes on (in the second and third paragraphs) to enumerate the
circumstances under which a state is to be considered “unwilling” or “unable”,
and does so in a relatively detailed manner. Despite such efforts, there remains
scope for interpretation.
In the view of some commentators, inability is a more objective, “fact-
driven” criterion (such as the physical and intellectual collapse of a judicial
system) and could therefore prove to be a scenario of little contention.30
Establishing unwillingness, on the other hand, seems to be a much more sub-
jective matter. A state may be declared “unwilling” when the proceedings are:
not conducted expeditiously; are conducted with the purpose of shielding the
person concerned from criminal responsibility; are not being independent or
impartial; or are conducted in a manner inconsistent with any intent to bring
the wrongdoers to justice.31 At this stage, the crucial question therefore is how

27)
Id., p. 27.
28)
Cassese, “The Statute of the International Criminal Court: Some Preliminary Reflections”:
12-13.
29)
Article 17(1)(a), Rome Statute (1998).
30)
Holmes, 2002, p. 677.
31)
Article 17(2), Rome Statute (1998).
538 M. Melandri / International Criminal Law Review 9 (2009) 531–545

broadly will the judges and the Prosecutor interpret whether a state is unwill-
ing or unable to genuinely prosecute?
The Rome Statute leaves the criteria for admissibility sufficiently broad to give
room for a selection of cases to be brought before the Court. The absence of suffi-
ciently detailed thresholds hence implies that complementarity is to be given effect
by the Prosecutor in deciding whether to take forward an investigation, and by the
Court in deciding whether to authorise a prosecution.32 Under the powers con-
ferred to him or her under Article 53, the Prosecutor holds the discretionary
authority to decide on the content of “unwilling” and “unable” and thus, to define
the Court’s “criminal policy”.33 It will not be an easy task to determine whether a
person is being tried with the intention of shielding justice, or whether proceedings
are not conducted consistently with the purpose of bringing alleged criminals to
justice, and such choices will bear important consequences for state sovereignty.
The first issue is that national prosecutions for core crimes will be subject to
close scrutiny by the Court, and the legitimacy of domestic proceedings will be
called into question.34 With this in mind, we see how the practice of the Court in
relation to admissibility will in fact define the relationship between states and the
Court, which is called upon to make judgements on the practices of national
authorities. Further, the lack of defined standards might create problems when
complementarity is to be applied to very differing domestic systems. Some com-
mentators have suggested that the Bench and the Prosecutor may indeed decide
to create a “margin of appreciation” doctrine, having regard to the efforts made in
good faith by national judicial systems (which may at times genuinely believe that
there are insufficient grounds to prosecute) and the variety of legal, political and
cultural environments in which they operate.35
Another important issue, at this stage, is whether the Court will initiate an
investigation where national measures such as amnesties or pardons, that may be
indicators of unwillingness of inability, have been granted to individuals.36 The
Rome Statute lacks provisions in merit, and the Prosecutor is simply bound by a
commitment to “serve the purposes of justice” in selecting cases.37 Arguably, this
is so because at Rome some delegations may have feared that allowing amnesties
to be granted would undermine the struggle for impunity and thus not serve the

32)
Philippe Sands, From Nuremberg to the Hague: The future of international criminal justice
(Cambridge: Cambridge University Press, 2003), p. 148.
33)
Article 53, Rome Statute (1998) See also Philippe, “The Principles of Universal Jurisdiction and
Complementarity: How do the Two Principles Intermesh?”: 390.
34)
Radosavljevic, 2007, p. 107.
35)
On this point see Jessica Almqvist, “The Impact of Cultural Diversity on International Criminal
Proceedings”, 4 Journal of International Criminal Justice (2006) 745-764, 760; Broomhall, 2003, pp.
92-93.
36)
Radosavljevic, 2007, p. 100.
37)
Article 53(1)(c), Rome Statute (1998).
 M. Melandri / International Criminal Law Review 9 (2009) 531–545 539

purposes of justice; while others aimed to make clear that the Statute should not
interfere in the administrative or political decision-making processes of a state,
including amnesties and pardons.38
To sum up, the above remain open questions, and arguably difficult ones to
answer. It is evident that tensions are likely to arise in relation to whether the
admissibility criteria will be satisfied in specific cases. One may wonder, therefore,
whether the mechanism set up by the ICC to avoid state attempts to escape its
jurisdiction will be sufficiently effective to ensure that international justice is
done, and state sovereignty set aside.39

2.2. Who Decides on Admissibility?

Under Article 17(1), the Statute makes clear that is the authority of the Court
itself to determine whether a case is admissible. States or individuals concerned
have the right to make challenges over the admissibility of a case under the provi-
sions of Article 19(2),40 but the Article establishes that the Court has the last
word on admissibility.41 As Holmes highlights, the importance of the Court acting
as sole arbiter cannot be over-emphasised, as it was the “untangling factor” in the
negotiations leading to a solution in favour to the complementarity regime, – as
well as what confers the Court its supra-national character.42 Therefore, now we
need to consider the question: is state sovereignty ultimately set aside under the
Rome Statute, in relation to disputes arising on admissibility grounds?
As outlined above, the Rome Statute does contain provisions for states and the
accused to make challenges to the admissibility of a case. States are encouraged to
make challenges at the earlier possible stage, and may only challenge the proceed-
ings once.43 Should a challenge be made, Article 19(7) provides that the Prosecutor
shall suspend the investigation until the Court has ruled on its admissibility. The
Article further provides, under paragraph (11), that where an investigation is
deferred, the Prosecutor can still request periodic information on the status of the

38)
See Iain Cameron, “Jurisdiction and Admissibility Issues under the ICC Statute”, in Dominic
McGoldrick, Peter Rowe and Eric Donnelly (eds.), The Permanent International Criminal Court: Legal
and Policy Issues, (Oxford: Hart, 2004), 90-91; El Zeidy, 2002, p. 941.
39)
See Cassese, “The Statute of the International Criminal Court: Some Preliminary Reflections”: 13.
40)
Ochoa, 2007, pp. 11-15. Also, see Rule No. 58(4): “The Court shall rule on any challenge or
question of jurisdiction first and then on any challenge or question of admissibility”, Rules of
Procedure and Evidence (2000), reprinted in Antonio Cassese, Paola Gaeta and John R.W.D. Jones,
The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University
Press, 2002).
41)
“Any dispute concerning the judicial functions of the court shall be settled by the decision of the
Court”, Article 119, Rome Statute (1998). This is also in accordance with Article 119, which con-
fers upon the Court the power to rule on any dispute concerning its judicial functions.
42)
Holmes, 2002, p. 672.
43)
Id., p. 683.
540 M. Melandri / International Criminal Law Review 9 (2009) 531–545

proceedings, thus creating a dialogue between the state and the Court.44 Article
18 then deals more specifically with the procedural aspects of this information
exchange between states and the Court, and also provides, under paragraph (2),
that a state may ask the Prosecutor to defer the investigation within one month
from receiving information, if the state is already investigating and prosecuting its
nationals.45
While granting the final word to the Court, these provisions, overall, have the
important merit of activating a complex, interactive and dynamic relationship
between the Court and states parties. Such flexible interplay, I would argue, has
both the merit of avoiding harsh contrasts between states and the Court, and may
also work to stimulate state action. To encourage states to retain their sovereign
jurisdiction while serving the aims of international justice was, after all, a noble
intent behind the very idea of complementarity.
To conclude, the relationship between state sovereignty and the ICC in mat-
ters of admissibility is still largely unsettled because the relevant provisions in the
Statute are open to interpretation. On the one hand, the Court is invested with
supra-national powers by retaining the final word on deciding whether a State is
unwilling or unable to prosecute – and thus holds the power to scrutinize national
criminal proceedings. On the other hand, the thresholds which define whether a
case is admissible are rather imprecise under the statute, and will be subject to
interpretation (and possibly to strategic considerations also). At present, the
Court has not yet defined its “criminal policy” and many questions remain to be
answered on how strictly national proceedings are to be scrutinized - the issue of
amnesties being a case in point. As Schabas put it, practice will show whether the
ICC will function only against weak, developing countries, or as a genuinely
independent body with the courage to tackle countries that are “unwilling” rather
than those that are simply “unable”.46 So far, the principle of complementarity
seems to be functioning only as an implicit restriction on state sovereignty,
because it removed the possibility for state parties to remain inactive, but it did
not establish specific standards for prosecution.47

3. Contemporary Notions of Sovereignty and International Criminal Law

So far we have established that, in relation to admissibility, the Rome Statute

leaves the final word to the ICC but provides the grounds for favouring constructive

44)
Id.
45)
Article 18, Rome Statute (1998). For a good summary of these provisions see Cameron,
“Jurisdiction and Admissibility Issues under the ICC Statute”, 84 and Benzing, 2003, pp. 622-624.
46)
Schabas, 2001, p. 426.
47)
Benzing, 2003, p. 600.
 M. Melandri / International Criminal Law Review 9 (2009) 531–545 541

relations between states and the Court. This section will move further from this,
by way of re-considering the relationship between states and the court in view of
the contemporary definitions of sovereignty. Contemporary views on state sover-
eignty go beyond traditional understandings of sovereignty as synonymous with
authority and control. I argue that such an innovative perspective may be useful
to explain why the Court has been so successful in its ratification campaign, and
why states have chosen to voluntarily surrender their jurisdiction to the ICC. In
other words, if one sees the principle of complementarity as a safeguard to national
sovereignty as traditionally understood (which could in part justify why a num-
ber of countries facing conflicts and turmoil still chose to become parties to the
ICC), how does one explain the fact that many states actively support the ICC,
and that some even waived their primacy and referred their own cases to the
Court?
The existence of a shift in international law conceptions of state sovereignty has
started to emerge in the last decades.48 Contemporary understandings of state
sovereignty are multifaceted. To mention but a few, the International Commission
on Intervention and State Sovereignty proposed a definition of “sovereignty as
responsibility”, both in its internal and external dimensions.49 Kofi Annan, former
Secretary-General of the United Nations, argued that state sovereignty, in its most
basic sense, is being redefined and “states are to be understood to be instruments
at the service of their peoples, and not vice versa”.50 Other commentators, more-
over, stress the fact that, in today’s world, states function and exist upon complex
relationships of interdependence to an extent which is unprecedented. In this
context, they view contemporary sovereignty as having changed its character
from being a centralized authority towards an idea of an authority that can be
“bargained away” in return for external influence over others’ policies.51
Essentially, the theme which principally connects these views is a substantial
restriction of authority in relation to traditional sovereignty. This was syntheti-
cally acknowledged also in the Tadić decision of the ICTY Appeals Chamber. The
judges there endorsed the idea that the approach to state sovereignty had evolved
through time, and resulted in a change of attitude, where the scope of state sov-
ereignty as understood in “old” international law has been restricted.52 In the

48)
For instance, see Kofi Annan, “Two Concepts of Sovereignty”, The Economist, 1999; International
Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa:
International Development Research Centre, 2001); Kingsbury, 1998; Nagan and Hammer, 2004.
49)
International Commission on Intervention and State Sovereignty, The Responsibility to Protect,
13-14.
50)
Annan, 1999.
51)
Kingsbury, 1998, p. 617.
52)
Prosecutor v. Duško Tadić, case No. IT-94-I-AR72, Appeals Chamber 2, October 1995, para 55
and 97, quoted in Gioia, “State Sovereignty, Jurisdiction, and ‘Modern’ International Law: The
Principle of Complementarity in the International Criminal Court”: 1099.
542 M. Melandri / International Criminal Law Review 9 (2009) 531–545

contemporary system of international relations, state sovereignty is thus consis-

tently limited in its capacity to deny international responsibilities and domestic
obligations.53 We will see that what qualifies such restrictions is, however, the fact
that sovereignty is not actually being taken away, but rather is being transformed
and transferred.
A particularly interesting formulation, for the purposes of this paper, is pro-
vided by two international relations scholars. Building on Annan’s view, Nagan
and Hammer argue that, in contemporary international law, sovereignty is not a
top-down matter. Their idea is that sovereignty is incomplete without an author-
ity component based on popular will, because that is from where it draws its
essential legitimacy, from the bottom, from the people.54 In such view, the
enforcement of international criminal law for the “core crimes” outlined under
Article 5 of the Rome Statute, which are crimes against the people, becomes in
itself a way to protect sovereignty. They argue that “one of the most important
sovereignty-securing themes in the Statute is that the international system seeks
to protect sovereignty by outlawing crimes against the peace and acts of aggres-
sion that target the territorial integrity and political independence of the sover-
eign state”.55
In my view, this new idea of sovereignty significantly helps to explain the suc-
cess of the ICC. Indeed, as we have seen above, the Court ultimately encroaches
upon the national sovereignty of a state when exercising jurisdiction where the
state would normally retain jurisdiction over the accused. This power is surren-
dered voluntarily by the state when becoming party to the Statute. A contempo-
rary understanding of sovereignty could show that, in so doing, the state does
not renounce its sovereignty but rather decides to engage with the Court in a
constructive manner, and works to promote its functioning and to realize its
objectives.

3.1. From Sovereignty vs. the ICC, to Sovereignty through the ICC?

As suggested above, the ICC may be seen as to provide a mechanism where

states are actually encouraged to use their sovereignty in the pursuit of interna-
tional criminal accountability.56 The ways in which states are encouraged to do
this are threefold: (i) by prosecuting their own nationals thus avoiding the
Court stepping in; (ii) by internalizing the value of prosecution of international
crimes and by participating in the development of customary international law
and a deeply rooted culture of accountability; (iii) by being directly involved in

53)
Nagan and Hammer, 2004, p. 14.
54)
Id., p. 31.
55)
Id.: 34.
56)
Also suggested by Cryer, 2005, p. 986.
 M. Melandri / International Criminal Law Review 9 (2009) 531–545 543

the administration of international justice (i.e. by participating in the nomina-

tion and election of judges; voting in the Assembly of State Parties).57
Now, given the mixed supranational and international properties of the Court,
practice shows that states may either see engaging with the ICC as a constructive
utilization of sovereignty, or reject it as an unpleasant derogation of state sover-
eignty (as it is evident, for instance, in the attitude of the United States towards
the ICC).58 Generally, with a large part of state authority transferred to the inter-
national level, states today feel the need to consider to what extent such authority
can still be considered as being sovereign. The challenge is, therefore, whether the
practice of the ICC will manage to convince states that engaging with the Court
means not a reduction in their sovereignty, but essentially a way to transform or
perhaps even enrich it. For instance, as argued by Nagan and Hammer, small and
weak states may see strategic convenience in sustaining the ICC because this will
protect them from aggression.59 The success of the Court, I argue, will thus ulti-
mately depend on whether it will be able to convince large and powerful states
that engaging with international criminal justice is not only morally right, but
also convenient. The Court has been designed as a method of last resort and not
as an enforcement mechanism (for instance it does not have a police force).
Without the dedicated support of state parties, its objective to end impunity
seems unlikely to become a reality.
In conclusion, the concept of state sovereignty changes in relation to time and
context. Under the current world order, different states uphold different under-
standings of sovereignty and use it in different ways. With this framework in
mind, it is important to highlight that a new idea has emerged of sovereignty as
responsibility towards the people, who in their turn give legitimacy to sovereign
control. This conceptualization is now a critical element of contemporary inter-
national law, and I argued that it can be tracked in the way the relationship
between states and the ICC was designed under the Rome Statute. Moreover, this
discussion suggested that unpacking the meaning of sovereignty may prove useful
to understand states’ attitudes towards the ICC. The extent to which states will
constructively engage with their sovereignty in a teleological manner so as to
advance the objectives set forward at Rome, or whether States will use the system

57)
The period for states to sign the Statute ended in December 2000. After that date, those who
sign will not be entitled to be part of the Assembly of State Parties. The rapidity with which the
court has received signatures may thus indicate that states were willing to secure a place in the
Assembly, so as to be able to exercise their sovereignty within the Court’s mechanisms. On this
point see Claire De Than and Edwin Shorts, International Criminal Law and Human Rights (London:
Sweet & Maxwell, 2003), p. 317.
58)
Adrian Jones, “Continental Divide and the Politics of Complex Sovereignty: Canada, The United
States and the International Criminal Court”, 39 (2) Canadian Journal of Political Science (2006)
227-48, 233.
59)
Nagan and Hammer, 2004, p.34.
544 M. Melandri / International Criminal Law Review 9 (2009) 531–545

of complementarity to delay and hinder justice from being achieved, is a matter

for future observation. State practice on international criminal law, in the coming
years, will reveal the status of the international ethos on criminal justice.

4. Conclusions – A Complex Interaction

This article has tried to map out the ambivalent and sometimes contradictory
roles that different typologies sovereignty play in advancing or hindering the
enforcement of international criminal law. It has done so by means of analysing
one aspect of the newly established ICC, namely the conditions for case admis-
sibility. The discussion has not attempted to measure the weight attributed to
state sovereignty under the complementarity regime of the ICC, but has rather
aimed to illustrate the flexible and dynamic character of their relationship. I have
argued that if, to some extent the two may be in opposition, they may also be
mutually reinforcing.
I have explored the existence of a binary conception of international criminal
accountability as antithetic to state sovereignty, and of a newly emergent concep-
tion of international criminal accountability as an empirical manifestation of sov-
ereignty. In my view, the complementarity regime encloses (and is an expression
of ) these two approaches. To use Jones’ terminology, we can say that complemen-
tarity ultimately represents a compromise which tries to accommodate both the
will of egoistic states and cooperative states (so defined according to their degree of
inclination to cooperate with international justice).60 In line with other commen-
tators, I support the view that the character of complementarity was purposely
left ambiguous by the drafters at Rome, at least enough to serve both the aims to
encourage state to comply with international justice, and to safeguard “tradi-
tional” state sovereignty.
The current practice of war crimes trials shows that there remains a constant
tension between state sovereignty and the need of international criminal tribunals
to have sufficient powers to functioning effectively and independently. However,
I argue that to simply assess the ICC’s potential for success by way of questioning
the extent to which states have surrendered their sovereignty to it in becoming
part of the Court is reductive. Indeed, the important change in the practice of
state sovereignty brought by the ICC is to have encouraged states, by becoming
parties to the Court, to use their sovereignty to advance the aims of international
criminal justice in a way which is unprecedented. To conclude, this article sug-
gested that, while states have surrendered a degree of their sovereignty to the

60)
A. Jones, 2006, p. 246.
 M. Melandri / International Criminal Law Review 9 (2009) 531–545 545

ICC, they have also committed a large degree of their sovereignty to the advance-
ment of international criminal justice. The extent to which this second strategy
will be effectively employed is a matter for future discussion. Close observation of
current and future development of national courts’ activities is therefore crucial
at this stage.