Background Materials — Completion Strategy

  • Relevant Treaties (in reverse chronological order)

  • ICC Documents (reverse chronological order)

    • Preliminary Examinations, ICC, available online (last visited Feb. 14, 2020)

      dynamic list of all investigations currently under investigation.

    • Assembly of State Parties, ICC, Proposed Programme Budget for 2020 of the International Criminal Court, ICC-ASP /18/10 (Jul. 25, 2019). Available online.

    • Office of the Prosecutor, ICC, Report on Preliminary Examination Activities 2019 (Dec. 5, 2019). Available online.

    • Office of the Prosecutor, ICC, Strategic Plan 2019–2021 (Jul. 17, 2019). Available online.

    • Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritization (Sep. 15, 2016). Available online.

    • Office of the Prosecutor, ICTR, Complementarity in Action: Lessons Learned from the ICTR Prosecutor’s Referral of International Criminal Cases to National Jurisdictions for Trial (Feb. 10, 2015). Available online.

    • Office of the Prosecutor, ICC, Policy Paper on Preliminary Examinations (Nov. 2013). Available online.

  • Articles (alphabetical by author, then reverse chronological order)

    • Tarik Abdulhak, Building Sustainable Capacities—From an International Tribunal to a Domestic War Crimes Chamber for Bosnia and Herzegovina, 9 Int’l Crim. L. Rev. 333 (2009). Doi

      provides a brief historical overview of the establishment of the War Crimes Chamber (WCC) of the Court of Bosnia and Herzegovina and its relationship with the Tribunal, and lays out the comparative advantages, contribution, and challenges of this model. It argues that theTribunal has an important obligation to ensure that, upon its closure, domestic courts have effective access to the information and records which will be needed to successfully and fairly complete the many investigations and trials to come, and the Tribunal’s performance in this respect will be an important yardstick against which the success of its Completion Strategy will be measured. The partnership, which has underpinned the cooperation of the Tribunal and the Court of WCC, should continue to guide the International Tribunal in creating its legacy vision.

    • Dapo Akande & Talita de Souza Dias, A New Approach to the “Interests of Justice” in the Ten Years Ahead of the Rome Statute: Why and When Should the Prosecutor use her Discretion under Article 53(1)(c) and 2(c) of the Statute to Defer Investigations or Prosecutions in Situations of Active Armed Conflict in Favor of Peace Negotiations?, ICC Forum (Jun. 28, 2018). Available online.

    • Payam Akhavan, Complementarity Conundrums: The ICC Clock in Transitional Times, 14 J. Int’l Crim. Just. 1043 (Dec. 17, 2016). Paywall, paywall, doi

      addresses the extent to which the ICC should accommodate the time and resource constraints of national judicial systems in transitional situations.

    • Jessica Almqvist, Complementarity and Human Rights: A Litmus Test for the International Criminal Court, 30 Loy. L.A. Int’l & Comp. L. Rev. 335 (Jun. 1, 2008). Available online

      examines Article 17 of the Rome Statute and completion strategies in Rwanda from a human rights perspective.

    • Cecile Aptel, Closing the U.N. International Criminal Tribunal for Rwanda: Completion Strategy and Residual Issues, 14 New Eng. J. Int’l & Comp. L. 169 (2007). Paywall

      tracks the closure of the ICTR and how the structured plans for the closures of both the ICTY and ICTR affected the completion strategies of the investigations underway in both tribunals. The author discusses the difficulties of clearing the docket of an international tribunal, procedural methods for transferring cases to national courts, and how Rule 11 both complicates and aids positive complementarity. Also discusses residual issues. These lessons can potentially be transposed onto any future ICC plans for completion strategies for individual investigations.

    • Lovisa Bådagård & Mark Klamberg, The Gatekeeper of the ICC: Prosecutorial Strategies for Selecting Situations and Cases at the International Criminal Court, 48 Geo. J. Int’l L. 639 (2017). Available online

      identifies strategic choices of the OTP in situation and case selection and analyzes them in relation to the ICC’s objectives.

    • Elena A. Baylis, Outsourcing Investigations, 14 UCLA J. Int’l L. & Foreign Aff. 121 (Sep. 1, 2009). Paywall, paywall

      describes the ICC’s reliance on third-parties in ICC investigations.

    • Laura M. Bingham, Strategy or Process—Closing the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 24 Berkeley J. Int’l L. 687 (May 1, 2006). Available online

      argues that completion strategies should be seen as a part of the Tribunal’s judicial work rather than a mere executive order, and should be a “process” of internalizing norms and strengthening deterrence effects.

    • David Bosco, Discretion and State Influence at the International Criminal Court: The Prosecutor’s Preliminary Examinations, 111 Am. J. Int’l L. 395 (Apr. 2017). Paywall, paywall, doi

      provides a comprehensive picture of the ICC’s preliminary investigations and highlights issues with the OTP’s handling of the these investigations. It does not discuss the closing of investigations, however.

    • Janine Natalya Clark, Peace, Justice and the International Criminal Court: Limitations and Possibilities, 9 J. Int’l Crim. Just. 521, 535–38 (Apr. 8, 2011). Available online, doi

      addresses the debate on the relationship between peace and justice. Speaks specifically to how the ICC can use the ICTY and ICTR’s experiences to bolster positive complementarity, although also discusses some of its drawbacks. The ICTY is used as an example of how an international tribunal effectively aided local investigations.

    • Christian De Vos, Investigating from Afar: The ICC’s Evidence Problem, 26 Leiden J. Int’l L. 1009 (2013). Available online.

    • Jens Dieckmann & Christina Kerll, UN Ad Hoc Tribunals Under Time Pressure—Completion Strategy and Referral Practice of the ICTY and ICTR from the Perspective of the Defence, 8 Int’l Crim. L. Rev. 87 (Jan. 1, 2008). Paywall, doi

      with the UN Security Council Resolutions on Completion Strategy calling upon the ICTY and ICTR to focus on the prosecutions of the High level leaders and transfer the trials of low level accused to National Jurisdiction, the authors critically analyze the development of the Tribunals case law on referral cases from a defense perspective.

    • James A. Goldston, Don’t Give Up on the ICC, Foreign Pol., Aug. 8, 2019. Available online

    • Dafna Gozani, Beginning to Learn How to End: Lessons on Completion Strategies, Residual Mechanisms, and Legacy Considerations from Ad Hoc International Criminal Tribunals to the International Criminal Court, 36 Loy. L.A. Int’l & Comp. L. Rev. 331 (Apr. 1, 2015). Available online

      explains why it is important to have a completion strategy for every international criminal tribunal, and gives an overview over completion strategies, residual mechanisms and the legacy of the different Ad Hoc International Criminal Tribunals (ICTY, ICTR, SCSL). It then dedicates a chapter to the ICC and explains what the Court needs to take into account when developing its completion strategy and residual mechanism.

    • Rebecca J. Hamilton, The ICC’s Exit Problem, 47 N.Y.U. J. Int’l L. & Pol. 1 (Mar. 15, 2014). Paywall, paywall

      seeks to promote a framework for how the ICC should decide and plan to exit situations in order to remain within the Court’s system of complementarily and to avoid perpetual presences in all situations it enters. The author further lays out the benefits of having a developed exit strategy, including the benefit of releasing pressure on the ICC’s resources.

    • Rebecca J. Hamilton, Closing ICC Investigations: A Second Bite at the Cherry for Complementarity? Harv. Hum. Rts. Prog. Working Paper Series (May 2012). Available online.

    • Larry D. Johnson, Closing an International Criminal Tribunal While Maintaining International Human Rights Standards and Excluding Impunity, 99 Am. J. Int’l L. 158 (Jan. 2005). Paywall, doi

      discusses “completion strategy,” a termed coined by the ICTY and endorsed by the UN Security Council, and discusses its various aspects. Also discusses about other factors which could affect the streamlined functioning of international courts.

    • Jean-Marie Kamatali, From the ICTR to the ICC: Learning from the ICTR Experience in Brining Justice to Rwandans, 12 New Eng. J. Int’l & Comp. L. 89 (Aug. 28, 2006). Available online

      examines how ICTR failed to bring justice to Rwandans and how the ICC can overcome the obstacles that affected the ICTR and ICTY.

    • Patryk Labuda, The ICC’s Evidence Problem, Völkerrechtsblog (Jan. 18, 2019). Available online.

    • Dominique le Touze, Derrick Silove & Anthony Zwi, Can There Be Healing Without Justice? Lessons from the Commission for Reception, Truth and Reconciliation in East Timor, 3 Intervention 192, 192–97 (2005). Available online.

    • Triestino Mariniello, Questioning the Standard of Proof: The Purpose of the ICC Confirmation of Charges Procedure, 13 J. Int’l Crim. Just. 579 (Jul. 2015). Paywall, doi.

    • Robert H. Mnookin, Rethinking the Tension Between Peace and Justice: The International Criminal Prosecutor as Diplomat, 18 Harv. Negot. L. Rev. 145 (2013). Available online

      argues it is both prudent and proper for the Prosecutor to take into account the interests of peace, if not under Article 53 then in two other ways: (1) in exercising the Prosecutor’s broad discretion to control timing—i.e., by choosing when investigations and prosecutions should begin; and (2) by embracing a policy of proactive complementarity until Article 17 and encouraging member states to pursue crimes on their own.

    • Daryl A. Mundis, The Judicial Effects of the “Completion Strategies” on the Ad Hoc International Criminal Tribunals, 99 Am. J. Int’l L. 142 (Jan. 2005). Paywall, paywall, doi

      describes the development of the completion strategies of the ICTY and ICTR, with emphasis on the ICTY experience. It then explores the effects of completion strategies on the operation of the international tribunals and problems that may arise, including roadblocks on successful implementation.

    • Fausto Pocar, Completion or Continuation Strategy? Appraising Problems and Possible Developments in Building the Legacy of the ICTY, 6 J. Int’l Crim. Just. 655 (Sep. 2008). Paywall, doi

      examines the origin of the ICTY’s completion strategy and how it serves to build its legacy in the former Yugoslavia. Investigations are not the focus of the paper but are touched on throughout a broader discussion of the ICTY’s transfer of capabilities and materials to local authorities.

    • Dominic Raab, Evaluating the ICTY and its Completion Strategy: Efforts to Achieve Accountability for War Crimes and their Tribunals, 3 J. Int’l Crim. Just. 82 (Mar. 1, 2005). Paywall, doi

      provides an overview of the completion strategy of the ICTY, evaluates this strategy and finally explains the lessons to be learned by the ICC.

    • Patricia Pinto Soares, Positive Complementarity and the Law Enforcement Network: Drawing Lessons from the Ad Hoc Tribunals’ Completion Strategy, 46 Israel L. Rev. 319 (Nov. 2013). Paywall, doi

      explains how the experience of the completion strategy of ad hoc tribunals offers a valuable cluster of lessons to be applied within the spectrum of positive complementarity.

    • Param-Preet Singh, In Afghanistan, the ICC Abandons the Field, HRW (Apr. 23, 2019). Available online.

    • Thomas Weatherall, The Evolution of Hibernation at the International Criminal Court: How the World Misunderstood Prosecutor Bensouda’s Darfur Announcement, 20 ASIL Insights (May 13, 2016). Available online.

    • Alex Whiting, The ICC’s Afghanistan Decision: Bending to U.S. or Focusing Court on Successful Investigations?, Just Security (Apr. 12, 2019). Available online.

    • Alex Whiting, Dynamic Investigative Practice at the International Criminal Court, 76 Law & Contemp. Probs. 163 (2014). Available online

      discusses the obstacles the OTP faces when completing an investigation and how completion is largely controlled by the resources available and the nature of the investigation. This article largely discusses completion as it relates to a timeline of when the OTP can make arrests or confirmations; however, this discussion can shed light on how scholars view completion as it relates to ICC investigations that do not end in arrests or confirmation.

  • Books (alphabetical by author)

    • Elizabeth Evenson & Alison A. Smith, Completion, Legacy, and Complementarity at the ICC, in The Law and Practice of the International Court 1259 ( Carsten Stahn ed., May 1, 2015). Available online.

    • Kevin Jon Heller, Completion Strategies and the Office of the Prosecutor (Jun. 26, 2009), in International Prosecutors 886 ( Luc Reydams, Jan Wouters & Cedric Ryngaert eds., 2012). Available online

      discusses the impact of completion strategies of tribunals on the OTP’s ability to fulfill its mandate. It outlines the strategies that tribunals have pursued, an analysis of the ways in which those strategies threaten the legitimacy, independence and effectiveness of the prosecutorial function, and outlines a ‘best practices’ guide to the completion strategies for current and future tribunals.

    • Richard Goldstone, International Criminal Court and Ad Hoc Tribunals, in The Oxford Handbook on the United Nations (Sam Daws & Thomas G. Weiss eds., Nov. 2008). Paywall, doi

      discusses contemporary international efforts to consolidate and codify significant portions of existing customary international law. It studies the ad hoc tribunals of the UN and pinpoints the successes and failures of the ICTY and the ICTR. The completion strategy of both international criminal tribunals is discussed. The article also covers the creation of mixed courts and a single model for international criminal justice, namely the International Criminal Court.

    • Mohamed El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (Sep. 17, 2008). Paywall, doi

      a study of the historical antecedents of the concept of complementarity.

    • Carsten Stahn, Judicial Review of Prosecutorial Discretion: Five Years On, in The Emerging Practice of the International Criminal Court 247 ( Carsten Stahn & Göran Sluiter, eds., Dec. 10, 2008). Paywall, doi

      briefly discusses two pre-trial chamber decisions, regarding the situations in Uganda and the DRC, declining to interpret the OTP’s inactivity on the situations as “decisions not to prosecute.” He argues for greater judicial scrutiny and transparency from the OTP.