Sovereignty and Justice: Balancing the Principle of Complementarity between International and Domestic War Crimes Tribunals

The drafters of the ICC’s founding document, the Rome Statute, foresaw what would become the main challenge to the Court’s legitimacy: that it could violate national sovereignty. To address this concern, the drafters added the principle of complementarity to the ICC’s jurisdiction, in that the Court’s province merely complements the exercise of jurisdiction by the domestic courts of the Statute’s member states. The ICC honours the authority of those states to conduct their own trials.

However, if the principle of complementarity is to be applied, states must ensure that their own judicial systems and trials are consistent with international standards of independence and fairness.

In addition, for complementarity to work, the ICC must be willing to actively support, embrace, and implement the principle. If the Court holds on too tightly to a self-aggrandising view of its role in promoting international justice, then it will lose all credibility in the eyes of nation states.

Finally, the international community, in calling on states to address war crimes committed within their borders, must provide the financial, technical, and professional resources that many struggling states need in this endeavour. This book sets forth several innovative recommendations to fulfil these goals so as to make future domestic war crimes courts work more effectively.


Mark S. Ellis is Executive Director of the International Bar Association (IBA), the foremost international organization of bar associations, law firms and individual lawyers in the world. Dr Ellis has published extensively in the area of international law, and his op-eds have appeared in The New York Times, The International Herald Tribune, and The Times. Dr Ellis served as Legal Advisor to the Independent International Commission on Kosovo, and was appointed by the OSCE to advise on the creation of Serbia’s War Crimes Court and acted as legal advisor to the defense team at the Cambodian War Crimes Court (ECCC). He was actively involved with the Iraqi High Tribunal, and is a member of the Disciplinary Advisory Panel to the Defense Counsel for the ICTY and ICTR. Twice a Fulbright Scholar at the Ekonomski Institute in Zagreb, Croatia, he earned his J.D. and B.S. (Economics) degrees from Florida State University and his PhD in Law from King’s College, London. He serves on the editorial boards for the Journal of National Security Law and Policy and The Hague Journal on the Rule of Law.

"Since the war in Kosovo, Mark Ellis has been one of the international community’s most forceful advocates for accountability through international justice. Widely recognised for his years of experience in the area of international law, he has produced a meticulously researched, thought-provoking, and compelling book on the intersection between international and domestic criminal justice, which should be a must read by anyone with an interest in this field."

- Michael P. Scharf, Case Western Reserve University School of Law.

“This is an important and provocative book by one of the world’s leading experts on international criminal justice. Dr. Ellis argues that the International Criminal Court is losing some of its credibility with nation states and that the future of international justice lies not in The Hague but with domestic war crimes courts that meet international standards.”
- John Bellinger is an adjunct senior fellow in international and national security law at the Council on Foreign Relations. He was the US State Department’s legal adviser from 2005 to 2009.

“Mark Ellis takes on the critical issues facing international criminal justice. His approach is rightly framed on the complementarity principle, taking an unflinching look at international, national and hybrid courts yet providing thoughtful analysis and proposals to address these issues. This book is an important and timely contribution on a critically important topic.”
- David Tolbert is President of the International Center for Transitional Justice. Mr Tolbert previously served as Deputy Prosecutor of the ICTY and registrar of the Special Tribunal for Lebanon. Prior to that he was assistant secretary-general and special expert to the United Nations secretary-general on United Nations Assistance to the Khmer Rouge Trials.

"Dr Mark Ellis in this excellent book reviews all the controversial issues that surround the principle of complementarity that forms the bedrock of the ICC model for international criminal justice. He has been involved in the development of the international courts from the early days of the ICTY and brings this wide experience to bear upon his analysis of this complex area. The solution he suggests to ensure an improvement of the effectiveness and quality of justice is well considered and commendable."

- Steven Kay, QC, represented Croatian Colonel General Ivan Cermak and Slobodan Milošević at the ICTY. He is currently representing the Deputy Prime Minister of Kenya, Uhuru Kenyatta at the ICC.

"Dr. Ellis combines his exemplary scholarly account with his practical experiences as a first class international lawyer in tackling some of the most devastating humanitarian injustices. He sees the writing on the wall and forces our collective conscience to determine unsettlingly whether or not we truly need more war crimes to understand the limitation of the system. Sovereignty and Justice is not only a required reading for both students of international law and international relations theory, but indeed, an essential guidebook for post-conflict transitional statecraft."

- Malik R. Dahlan, Principal, Institution Quraysh for Law & Policy,Qater

“Mark Ellis, an active participant in the history of international criminal courts, makes a strong and meticulously documented argument that the ICC’s doctrine of complementarity is the only way forward. His comprehensive compilation of the past and his innovative proposals for future change in the operation of this intriguing doctrine makes this book a must-read for anyone who cares about justice.”
—Judge Patricia Wald, former judge on the ICTY

Buy This Book

ISBN: 1-4438-5704-1

ISBN13: 978-1-4438-5704-8

Release Date: 30th May 2014

Pages: 325

Price: £49.99

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