The Appeals Chamber of the ICC ultimately rejected the challenges brought by Kenya under the complementarity principle.
206) Kenya thus envisioned that the complementarity principle of Article 17 carries a "presumption in favour of national jurisdictions" and "leaway [sic] in the exercise of discretion in the application of the principle of complementarity.
For example, the Prosecutor may be required to provide additional information to the PTC so that it can better assess procedural matters, such as the admissibility of the case under the complementarity principle, as well as substantive matters such as information to assist the Court with determining whether certain elements of crimes are indeed satisfied.
254) This is problematic insofar as it may "tilt" the balance of shared roles in international crime investigation and prosecution between the ICC and national jurisdictions under the complementarity principle too far in the direction of the former (i.
For example, based on the Kenyan precedent, the national jurisdiction challenging case admissibility under the complementarity principle must show, to avoid a finding of prosecutorial or investigative "inaction" (and hence admissibility before the ICC), that it is investigating or prosecuting the same suspects for substantially the same conduct (i.
In each of these scenarios put forth above, different suspects in the same "high-level" hierarchy or (somewhat) different conduct, the ICC "wins" in a jurisdictional challenge between it and the nation-state over the complementarity principle.
110) Article 17 of the Rome Statute states that the Pre-Trial Chamber of the ICC may determine a case is admissible before the ICC under the complementarity principle if national proceedings were initiated for the "purposes of shielding the person from criminal responsibility" or were not conducted independently or impartially.
If the Prosecutor determines at any time that the Sudanese special courts are able and willing to prosecute in an impartial manner the two named suspects for the charges in the Application, and are in fact doing so, then, under the complementarity principle, the case would become inadmissible before the ICC.
123) The assertion of the Prosecutor is that the ICC is pursuing different charges for different crimes against Kushayb; therefore, the case is still capable of prosecution before the ICC under the complementarity principle.
The complementarity principle is not violated in the ICC case against Harun because the Sudanese national courts have shown no willingness to prosecute this individual.
The developing case is already providing a better understanding of the application of the Rome Statute's complementarity principle.
In short, the complementarity principle has not been violated, and the ICC may proceed with trying the case.