로마규정상 보충성 원칙의 적용

The Application of the Principle of Complementarity under the Rome Statute - With special reference to ‘the same person, (substantially) the same conduct’ test

As one of the criteria for determining whether or not a case is admissible, “the same person, (substantially) the same conduct” test was established by the ICC jurisprudence. However, when analyzing the actual ICC related cases, it can be seen that in most cases, the State which has jurisdiction over a case did not meet this test. Accordingly, criticisms have been steadily raised that this test has been set too strictly to cause excessive burden on the State, or to remove or mitigate this test because it is against the object and purpose of the complementarity system. However, the same person, (substantially) the same conduct test is based on the Rome Statute, and rather the elimination or mitigation of this test would not fit the object and purpose of the Rome Statute which is to put an end to impunity for those who committed the most serious crimes of international concern. Therefore, those criticisms above are unacceptable. However, since the States involved in the case are still in conflict or often in a transition period after the conflict, it is necessary for the ICC to take positive measures to facilitate and support domestic investigations or prosecutions in those States.