Complementarity (Un)Fairness

Abstract Power has long shaped discussions in international criminal law, with many contending that powerful states evade accountability while less powerful states face disproportionate scrutiny. Although the International Criminal Court (ICC) has recently expanded its reach — investigating powerful states such as the United States and issuing arrest warrants against high-ranking officials from Russia and Israel — it has yet to prosecute anyone from a powerful state. This article provides a nuanced analysis of power, distinguishing between superpowers and other powerful states. It examines how the principle of complementarity enables the latter group, exemplified by the Iraq/UK case, to avoid ICC proceedings through informational gaps and procedural deference, despite delivering little substantive accountability. This article evaluates two alternative solutions: the ICC’s approach in the recent arrest warrants against Israeli officials and a proposed shift in the burden of proof. It argues that the latter offers a more effective balance between accountability and incentives for domestic investigations.