Keywords: International Criminal Court; Complementarity Principle; Rome Statute; Interpretation of International Law; Functional Interpretation Technique; Situation in Georgia.
In spite of the many decisions adopted by the International Criminal Court with regard to the interpretation of Art. 17 of the Rome Statute, establishing the principle of complementarity, some issues still remain unsettled. In particular, it is not entirely clear what is the measure of discretion of the Court in determining if a State is unable or unwilling to conduct a genuine proceeding. Building on the recent case law of the Court, this article attempts to shed some light on that issue. It concludes that, by using its interpretative powers, the Court is creepingly reversing the terms of the principle of complementarity and affirming its jurisdiction in situations where the acting State has not been definitively proved to be unwilling or unable.