International Criminal Law ♦ Article 65 Va. J. Int’l L. 291 (2025)

Complementarity and the Normative Structure of International Criminal Law

RYAN LISS

This Article offers a novel normative justification for complementarity, the principle that governs the basic institutional structure of international criminal law. Under complementarity, the International Criminal Court (and foreign states acting under universal jurisdiction) must initially defer to a state with jurisdiction over the case, stepping in only if the state fails to prosecute. Despite consensus on its importance, scholars have failed to offer a coherent normative justification for the principle of complementarity, raising questions about the legitimacy of the underlying structure of the field. A solution to this problem comes from looking beyond international criminal law to political theory, which has long debated the normative source and limits of state authority. Engaging with these debates, I offer a new theory of complementarity. Complementarity is best understood as instantiating a conception of the state that views sovereignty as justified because, but only insofar as, it offers a framework to secure the equal dignity of persons under the rule of law. With this context, complementarity no longer looks like a principle in search of a justification; rather, it seems to reflect a coherent account of how we ought to structure an international legal order to secure the rights of persons in a world of states.