Three Theories of Complementarity: Charge, Sentence or Process?

Abstract

This paper is an invited response to an article by the excellent Kevin Jon Heller, 'A Sentence-Based Theory of Complementarity'. He critiques 'charge-based' approaches to complementarity and proposes a new ‘sentence-based’ approach. I agree with his critiques, but argue that a sentence-based approach would also raise significant problems. I therefore advance a third model, a 'process-based' approach, which I believe is the most elegant approach and the best fit with the Statute. In addition, while I partly agree with Kevin’s criticisms of the 'same conduct' test, I show that the Statute elsewhere addresses some of the concerns. Thus, the problem is narrower than is commonly supposed, and accordingly I suggest a narrower solution.