Background Materials — Decentralized Accountability

  • Relevant Treaties (in reverse chronological order)

  • Governments and Intergovernmental Organizations (reverse chronological order)

    • Eurojust, Supporting Judicial Authorities in the Fight Against Core International Crimes (2020). Available online.

      (“Successful investigations are built on specialist knowledge and close coordination between national authorities, and often require the gathering of evidence scattered across different countries. Most cases require interactions with third States and international partners. Eurojust, the EU Agency for Criminal Justice Cooperation, and the EU Network for investigation and prosecution of genocide, crimes against humanity and war crimes support national authorities in their investigations and prosecutions. Working out of Eurojust’s premises in The Hague, their role involves cooperating with practitioners in the field, as well as NGOs and international bodies, such as the International Criminal Court or the International, Impartial and Independent Mechanism for Syria, to ensure best practice and serve as a central hub for information and knowledge-sharing during cases.”).

    • Julia Krebs, Cedric Ryngaert & Florian Jeßberger, European Parliament, Universal Jurisdiction and International Crimes: Constraints and Best Practices (Sep. 2018). Available online.

      (“This report summarises the proceedings of a workshop organised by the European Parliament’s Subcommittee on Human Rights, in association with the Committee on Legal Affairs and the Committee on Civil Liberties, Justice and Home Affairs. Academics and practitioners discussed international trends as regards the concept of universal jurisdiction and the EU’s approach to promoting universal jurisdiction through its external relations, as well as practical experience in applying universal jurisdiction in the fight against impunity in Europe. The experts agreed that universal jurisdiction can play a role as part of a wider accountability strategy, complementary to international courts and prosecutions on other jurisdictional bases. They recommended more specialised training for investigators, prosecutors, judges and law enforcement staff for universal jurisdiction cases and more cooperation at EU and international level. Speakers supported the initiative for a multilateral treaty on mutual legal assistance and extradition. Special attention in universal jurisdiction cases must be given to victims seeking justice, including for sexual and gender-based crimes.”).

    • Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Jun. 27, 2014) [hereinafter Malabo Protocol]. Available online.

    • Protocol to the African Charter on Human and Peoples’ Rights on the Establishment an African Court on Human and Peoples’ Rights (adopted Jun. 10, 1998, entered into force Jan. 25, 2004) [hereinafter Ouagadougou Protocol]. Available online.

    • Organization of African Unity, African Charter on Human and Peoples’ Rights, 21 Int’l L. Materials 58 (Jun. 27, 1981, entered into force Oct. 21, 1986) [hereinafter Banjul Charter]. Available online.

  • News Articles (reverse chronological order)

    • Aishvarya Kavi, Congress Votes to Expand U.S. Power to Prosecute International War Crimes, N.Y. Times, Dec. 22, 2022. Available online.

  • Non-Governmental Organizations (NGOs) (reverse chronological order)

    • Howard Varney & Katarzyna Zduńczyk, ICTJ, Advancing Global Accountability: The Role of Universal Jurisdiction in Prosecuting International Crimes (Dec. 2020). Available online.

      (“This study considers the rationale for universal jurisdiction and describes the challenges and controversies it faces today. It explores similarities and differences between domestic laws that give effect to universal jurisdiction and considers the leading role played by nongovernmental organizations in generating such cases at the domestic level. In particular, the study focuses on the use of universal jurisdiction with respect to serious crimes committed in Syria and provides examples of cases brought before various domestic courts. It also explores the relationship between accountability initiatives for Syria at the international level. The future of universal jurisdiction as a viable mechanism of global justice is also considered. While this form of justice has made significant advances in recent years, it still faces considerable headwinds. The paper concludes with a set of recommendations aimed at entrenching universal jurisdiction as a globally recognized means of justice.”).

    • Cayley Clifford, SAIIA, Justice Beyond the International Criminal Court: Towards a Regional Framework in Africa (Jan. 2019). Available online.

      Groups have called for a mass African withdrawal from the ICC, criticizing its ability to proceed with a formal case and questioning its accountability. African leaders are also concerned about the application of universal jurisdiction, especially by non-African states. There are also conflicts in ideas of justice. The ICC advocates for immunity whereas most African countries do not. It would be helpful for the ICC to “recognize the principal claims of conflict and the larger social and moral implications of its work.” Ultimately, the ICC is limited by politics. As such, there has been a greater recognition of the need for strengthened African judicial systems. African states are working to institutionalize justice mechanisms and could use assistance in doing so.

    • Christopher Keith Hall, Amnesty Int’l, Universal Jurisdiction: The Challenges for Police and Prosecuting Authorities (Jun. 2007). Available online.

      This report discusses positive developments at the national level in the exercise of universal jurisdiction and the activities of Amnesty International and other non-governmental organizations. The author identifies the many obstacles facing national authorities in exercising universal jurisdiction from a legal, political, and practical perspective. Finally, the report makes suggestions for how these obstacles for national authorities can be overcome.

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

    • Adeno Addis, Imagining the International Community: The Constitutive Dimension of Universal Jurisdiction, 31 Hum. Rts. Q. 129 (Feb. 2009). Available online.

      The assertion of prescriptive and adjudicative universal jurisdictions by some countries in relation to a handful of offenses that are classified as international or universal crimes (e.g. genocide) has led to a great deal of controversy. Those who favor universal jurisdiction argue that certain acts (often crimes) affect all of us, not just the specific individual or group of victims or the country of which the victims are nationals. It is therefore legitimate, they argue, for any state to punish or suppress such acts regardless of any traditional jurisdictional connection between the alleged acts and the state asserting jurisdiction. The availability of universal jurisdiction is premised on the presumed effect of certain crimes on humanity as a whole. Those who commit these offenses are referred to as hostis humani generis —enemies of all humankind. Skeptics argue that the idea of universal jurisdiction is conceptually incoherent, inconsistent with the principle of political self-determination, and has great potential to be an instrument of political mischief. While they disagree on the conceptual coherence and utility of the notion of universal jurisdiction, both proponents and opponents view its function in purely instrumental terms, to provide the condition for punishing or suppressing certain offenses that affect all of us. This article argues that universal jurisdiction also serves another, less articulated purpose. It has a constitutive function as well. It is partly a process through which the identity of the international community is imagined and enacted. It is an expression of a sense of ourselves (a community of humankind) at given moments of time. This article argues that neglect of this constitutive dimension leads to an incomplete analysis of universal jurisdiction.

    • Sascha Dominik Dov Bachmann & Eda Luke Nwibof, Pull and Push: Implementing the Complementarity Principle of the Rome Statute of the ICC Within the AU: Opportunities and Challenges, 43 Brook. J. Int’l L. 457 (2018). Available online.

      (“The AU is currently taking steps to establish a regional criminal court, which could altogether keep the ICC out of Africa. Its opposition is as much a political problem as it is a legal one. These problems are the backdrop to this article, which aims to critically analyze the relationship between national and international systems of criminal justice, as well as how the Rome Statute’s complementarity principle regulates the relationship between the ICC and national legal orders. Part I of this article will seek to explain the relationship between national and international criminal justice and how the Rome Statute’s complementarity principle regulates the correlation between the ICC and national legal orders. Part II will reflect on the overall success of ICC justice being “accepted” and/or rejected in an AU context and will ascertain if mere compliance with international legal norms by African States can be validly rated as an indication of acceptance. Part III will highlight some of the obligations and challenges facing domestic implementation of the Rome Statute’s complementarity regime within Africa’s national legal orders. Finally, Part IV will provide concluding observations and recommendations.”).

    • Christine Bjork & Juanita Goebertus Estrada, Complementarity in Action: The Role of Civil Society and the ICC in Rule of Law Strengthening in Kenya, 14 Yale Hum. Rts. & Dev. L.J. 205 (2011). Available online.

      Bjork and Estrada examine how regional NGOs and civil society groups can work in tandem with the ICC to implement positive complementarity using Kenya as a case study. Specifically, the authors sought to determine how NGOs used the ICC preliminary examination that took place between 2008 and 2010 to advocate for domestic judicial accountability for violence that occurred in the wake of the 2008 Kenyan national election. To evaluate this research question, the authors traveled to Kenya and engaged a variety of NGO staff members in field interviews. The authors first posit that ICC preliminary examinations can provide NGOs with an opportunity to advance domestic judicial institution-building and accountability by drawing attention to a situation and legitimizing the need for action on an international stage. The authors also argue that NGOs can use ICC preliminary examinations as a “stick” to push states to initiate reform to avoid appearing unwilling or unable to handle a situation domestically and triggering ICC jurisdiction. However, based on their field research in Kenya, the authors found that most NGOs did not utilize the 2008–2010 ICC preliminary examination to influence domestic judicial reform. The authors suggest that this may be because some NGOs favored direct ICC intervention and note that NGOs with “bottom-up” approaches were most successful in leveraging ICC attention to create local change. Ultimately, the authors conclude that for a partnership between the ICC and civil society to succeed, both group’s objectives need to be aligned.

    • Shelby Black, Universal Jurisdiction and Syria: A Treaty Based Expansion of Universal Jurisdiction as a Solution to Impunity, 21 Int’l Trade Bus. L. Rev. 177 (2018). Paywall.

      Black describes immediate action items and long term solutions to stepping into certain international conflicts and war crimes when the ICC cannot exercise jurisdiction. Specifically, Black argues that a solution to filling the gaps that ICC’s limited jurisdiction leaves is codifying universal jurisdiction in domestic and international law. First Black describes why the ICC does not have and may not be able to have jurisdiction over the Syrian civil war. Syria will likely not ratify the Rome Statute so self referral is likely not an option. And the referral process by which other organizations refer Syria to the ICC is ineffective. As such Black argues, the ICC cannot exercise jurisdiction so war criminals in Syria will not face international court repercussions. Then Black outlines a few immediate action items to the jurisdiction problem: (1) NGOs and IGOs should continue to document any crimes, (2) states’ domestic courts should codify universal jurisdiction in their laws, and (3) scholars should advance universal jurisdiction as a theory. Finally, Black says, that in the long term, an international treaty should be created to adopt universal jurisdiction. Black ends by explaining the details of this treaty.

    • Laura Burens, Universal Jurisdiction Meets Complementarity: An Approach towards a Desirable Future Codification of Horizontal Complementarity between the Member States of the International Criminal Court, 27 Crim. L. Forum, 75 (Jan. 29, 2016). Paywall, doi.

      (“This paper will propose a first draft provision concerning horizontal complementarity between the member states of the ICC. Firstly, the idea of subsidiary universal jurisdiction will be introduced. At its heart, the work will bring the concepts of vertical complementarity and subsidiary universal jurisdiction into relation to define a desirable future codification of horizontal complementarity. The author will focus on the following seven issues that have to be addressed during the drafting of such codification: The relationship between the actors; the legal qualification of horizontal complementarity; the underlying idea and ratio behind the concept; a positive or negative determination of complementarity; the definition of horizontal complementarity; the question who the final arbiter of a determination should be; the matter of compliance with decisions. It will be seen that Art. 17 ICC Statute can serve as a useful basis of this codification but that the special relationships on the inter-state level will inevitably lead to some deviating requirements of this principle.”).

    • William W. Burke-White, Implementing a Policy of Positive Complementarity in the Rome System of Justice, 19 Crim. L. Forum 59 (2008). Paywall, doi.

      (“This article seeks to develop such a policy, whereby the Office of the Prosecutor would not merely prosecute when national courts fail, but would actually encourage the prosecution of international crimes by national courts. While the idea of positive complementarity has been frequently stated by the Prosecutor, the policy developed here pushes the OTP further toward explicitly encouraging national prosecutions than the Prosecutor’s vision to date. This article recognizes that within the OTP’s mandate under the Rome Statute, the Prosecutor has considerable leverage to encourage and activate national judiciaries. Moreover, the article suggests that the overall goal of the Rome Statute-ending impunity may be best achieved through such encouragement of national prosecutions. Though such a policy is grounded in the Rome Statute and reflects the sentiments of the Prosecutor, its implementation will require the Court to move beyond its current policies and practices.”).

    • William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53 (Dec. 2008). Paywall.

      Burke-White explains the concept of proactive complementarity and argues that the Rome Statute does far more than merely define the limits of the Court’s power. The Statute creates a system of judicial enforcement for the prosecution of the most serious international crimes at both the domestic and international levels of governance. The Statute affirms the duties and rights of both national governments and the ICC to prosecute such crimes and reifies the obligations of states to assist the ICC in its own investigations and prosecutions. The article calls this tiered system of prosecutorial authority “the Rome System of Justice” whereby both the domestic and international levels of governance have interrelated international legal duties to provide accountability for international crimes. As a strategy for encouraging national governments to undertake their own prosecutions of international crimes, proactive complementarity would allow the Court to catalyze national judiciaries to fulfill their own obligations to prosecute international crimes. A strategy of proactive complementarity would use the Court’s legal and political powers to activate states’ domestic courts in international criminal prosecutions. According to this article, the admissibility requirements of Article 17 of the Rome Statute does not just limit the cases the ICC can hear, but rather it regulates the allocation of authority between states and the ICC. This means that the ICC would only focus on cases where there is no available domestic alternative. The Prosecutor’s rhetoric of encouraging domestic prosecutions must thus be transformed into a formal policy of proactive complementarity that would structure the ICC’s interactions with national governments. Proactive complementarity recognizes that some states might require outside assistance when they lack the resources. This is relevant to our essay question because it demonstrates how the OTP can encourage states to prosecute certain crimes. This allows the ICC to “hand off” certain cases and focus on cases where there is no domestic alternative.

    • Douglass Cassel, Universal Criminal Jurisdiction, 31 Hum. Rts. 22 (Jan. 1, 2004). Available online, archived.

      Cassel argues that safeguards must be designed so that universal criminal jurisdiction is not abused. There are three safeguards: (1) the principle of legality, which means universal criminal jurisdiction should be exercised only over serious international crimes clearly recognized by treaty or international law, (2) the principle of necessity, where universal jurisdiction should not be exercised by another nation where the nation whose citizen is a suspect already has meaningful legal procedures in place, and (3) the principle of due process of law, where universal jurisdiction should not be exercised if the nation’s court fails to comply with international norms.

    • James L. Cavallaro & Jamie O’Connell, When Prosecution is Not Enough: How the International Criminal Court Can Prevent Atrocity and Advance Accountability by Emulating Regional Human Rights Institutions, 45 Yale J. Int’l L. 1 (2020). Available online.

      Cavallaro and O’Connell compare the effectiveness of the ICC and each regional institution in advancing prevention and accountability, comprehensively synthesizing and evaluating the available evidence. The ICC has followed a narrow, legalistic strategy that focuses almost exclusively on investigating and prosecuting individual defendants. By contrast, the regional institutions—especially the Inter-American Court and Commission and European Court of Human Rights—have taken a more sophisticated and effective approach that the ICC should emulate. Specifically, the ICC should strategically employ multiple tactics to reduce mass atrocity and increase prosecution of perpetrators, especially at the national level. It should recognize that it operates as one player in a complex system—complementing, stimulating, and supporting the efforts of other domestic and international actors, while paying careful attention to local context. (ICC prosecutors and judges also need to improve their work on individual cases.) This new strategy both is truer to the ICC’s founding vision of complementarity and offers the Court’s best chance for emerging from crisis to play a significant role in preventing atrocity and securing accountability for it.

    • Shuvra Dey, Universal Jurisdiction and Cooperation Between ICC Member States in Prosecuting Nationals of Non-Member States, 3 Trento Student L. Rev. 61 (2021). Available online.

      With the advent of universal jurisdiction, member States of the ICC can bring the perpetrators of non-member States to justice or prosecute crimes that would have otherwise been inadmissible under the Rome Statute. When prosecuting under universal jurisdiction, a bystander state with no territoriality or nationality link relies on the cooperation of another state where the suspect is residing or any other state where the crime took place. The cooperation takes place in multiple forms, including, but not limited to, the extradition of the suspect or the sharing of facts and evidence with the bystander state. This article scrutinizes how the existing ICC system facilitates inter-states cooperation, stressing the need for an effective mechanism that can foster a cooperative relation. It starts with examining the scope of the principle of complementarity, with particular attention to how the principle can withstand competing jurisdiction claims and promote a system of cooperation under which the ICC and the domestic jurisdictions positively complement each other through mutual support and assistance. Finally, it analyzes the resonance of the procedures adopted by the Assembly of the State Parties that can possibly be used to promote inter-state interactions and encourage the requested state to comply with the cooperation request of the bystander state.

    • Richard Dicker & Helen Duffy, National Courts and the ICC, 6 Brown J. World Aff. 53 (1999). Paywall.

      (“After an introductory overview of the statute of the International Criminal Court, this article will examine two of its critical aspects: the exercise of the court’s jurisdiction (the jurisdictional provisions) and its relationship to national legal systems (“complementarity”). Not only are these critical features of the new court; they frame the relationship between the ICC and national courts. “Complementarity” is the cornerstone of the ICC structure. The fact the ICC is complementary in nature to national courts ensures that it will not usurp the power or undermine the duty of states to investigate and prosecute the most serious international crimes. Rather, complementarity creates an essential but limited role for the ICC as the international mechanism empowered to step into the breach. The jurisdictional provisions, on the other hand, are the treaty’s greatest weakness. By imposing unnecessarily restrictive “preconditions to the exercise of jurisdiction,” the ICC’s ability to fill the “impunity gap” engendered by the fail ure of national authorities is weaker than it should be to bring justice to victims. While the ICC is a major step forward for the rule of law and protection of human rights, the complementarity and jurisdictional articles ensure the circumstances in which the ICC can operate will be restricted. But these provisions create a constructive and unprecedented dynamic between national courts and the ICC and a place for each in an emerging international legal order. Directly and indirectly, the ICC’s limitations underscore the continuing importance of national courts as the first line of attack against egregious crimes. We conclude our article by discussing the role the ICC could play in an emerging system of international justice. We suggest the ICC and invigorated national courts are two pillars of a viable system of enforcement of international human rights and humanitarian law norms.”).

    • Alena F. Douhan, United Nations and Regional Organizations: Complementarity v. Subsidiarity, 19 Max Planck Y.B. U.N. L. 241 (2016). Paywall, doi.

      The United Nations organization was planned to be established as a single universal system of collective security. Major efforts were supposed to be taken by the UNSC. Regional organizations were introduced into the system as a subordinate subsidiary—elements of the system. Over the course of the time it has, however, appeared that the S.C. was not able to act in the way prescribed by the U.N. Charter in suppressing newly emerged threats and challenges in the sphere of security. In the contrary, the role of regional organizations has increased substantially. They do the majority of tasks in the sphere of maintenance of international peace and security, often without authorization or even informing the UNSC, although the legality of some of these actions may be dubious. As a result, the Council itself transfers the accent in relations between the U.N. and regional organizations from subsidiarity to complementarity or even partnership. It is thus necessary to re-check the meaning of the concepts of complementarity and subsidiarity as well as the U.N. Charter provisions in the changed circumstances and to specify principles of the new system.

    • Björn Hettne & Fredrik Söderbaum, The UN and Regional Organizations in Global Security: Competing or Complementary Logics?, 12 Global Governance 227 (2006). Available online, paywall.

      What is the optimal relationship between global bodies and regional agencies in international security? This question has been intensively discussed at various junctures during the last century, including at the establishment of the United Nations in the 1940s. Today the debate between the U.N. and regional organizations has resurfaced⎯ among policymakers as well as the research community⎯ as one of the most important issues in the global security architecture, including reform of the UNSC. The long-standing prevailing view of the global-regional relationship in security matters has posited that a dominant UN would delegate tasks to subordinate regional institutions. With the rise of so-called new regionalism in recent decades, regional organizations have become actors in their own right. This complexity is not likely to decrease in the future. The greater agency of regional bodies needs to be recognized. It is more realistic to think of the relationship between multilateralism and regionalism in more horizontal and reciprocal terms, compared to the orthodox approach where regional agencies are subordinated to the UNSC.

    • Dalila V. Hoover, Universal Jurisdiction not so Universal: Time to Delegate to the International Criminal Court, 8 Eyes on the ICC 73 (2011). Paywall, earlier version available online.

      Hoover explores the challenges states face in exercising universal jurisdiction and proposes an ICC review board as a potential solution. The author defines universal jurisdiction as the assertion of jurisdiction over crimes that are so heinous that they can be considered injurious to the international community as a whole “regardless of any nexus the state may have with the offense, the offender, or the victim.” The author provides a historical overview of the exercise of universal jurisdiction and lays out four major obstacles to the effective use of universal jurisdiction: (1) Inadequacy of national legislation and procedure, (2) Potential and actual political abuses, (3) Immunity of state officials, and (4) Absence or inefficiency of extradition laws. To address these obstacles, the author proposes an ICC Review Board under the Office of the Prosecutor which would evaluate the merits and legitimacy of state parties’ claims to prosecute under universal jurisdiction and render a decision about whether the prosecution should proceed. The author posits that the ICC’s scrutiny would add greater legitimacy to the exercise of universal jurisdiction and would provide a backstop against baseless claims and corrupt practices.

    • Devika Hovell, The Authority of Universal Jurisdiction, 29 EJIL 427 (May 2018). Available online, doi.

      Hovell provides a conceptual framework for how to justify universal jurisdiction and the implications of those frameworks. First, explains how courts who exercise universal jurisdiction justify it through a legal source of authority. Specifically, legal communities justify the exercise of universal jurisdiction via positive domestic law, international law and customary international law. Then, she critiques these form of justification, saying that it does not adequately serve the victims of the crimes the prosecutions are supposed to persecute. Finally, she argues that universal jurisdiction must be understood, and justified, with attention to its purpose and the community (or communities) it is intended to serve. Specifically, in deciding whether to exercise jurisdiction, courts should compare the interests of the state to that of the victims.

    • Joseph M. Isanga, The International Criminal Court Ten Years Later: Appraisal and Prospects, 21 Cardozo J. Int’l & Comp. L. 235 (2013). Available online.

      Part VI of this article explains that pursuant to Article 87(6) of the Rome Statute, the ICC “may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.” Regional organizations can contribute vitally to enabling its work. It outlines the ICC’s cooperation agreement with the European Union and a similar agreement with the African Union has been elusive due to the AU’s displeasure at the fact that most investigations concerned African countries. It then poses the question of whether an autonomous regional criminal court in Africa should be the way forward and looks at the pros and cons of that statement. An advantage, for example, would be that the ICC has almost exclusively investigated African situations and a regional permanent international criminal court to complement the ICC could avoid the shortcomings of the central court in the Hague. It then outlines a few disadvantages, such as diminishing the interest of the international community in cases tried on a regional basis. This is relevant because the article looks at (1) the arguable non-cooperation of a regional organization, the African Union, with the ICC and (2) whether a regional criminal court in Africa is the way forward and the advantages and disadvantages such an approach would pose.

    • Miles Jackson, Regional Complementarity: The Rome Statute and Public International Law, 14 J. Int’l Crim. Just. 1061 (Dec. 2016). Available online, doi.

      Admissibility decisions in the Kenyatta, Gaddafi, and Gbagbo cases at the ICC have brought increased attention to the principle of complementarity under Article 17 of the Rome Statute. However, little attention has been paid so far to a related admissibility issue: how do regional (and sub-regional) tribunals fit with Article 17? This article argues that a genuine prosecution by a lawfully constituted regional tribunal should be seen as prosecution by a state such that the case is inadmissible before the ICC. This conclusion follows from the proper understanding of the legal relationship between states and regional tribunals and the contextualized application of the principles of treaty interpretation enshrined in Article 31 of the Vienna Convention on the Law of Treaties. Moreover, it is consistent with the values underlying the central principle of complementarity and makes sense as a matter of policy.

    • Charles Chernor Jalloh, The Role of Non-Governmental Organizations in Advancing International Criminal Justice, 1 AJICJ 47 (2015). Available online, doi.

      (“This article examines the role of non-governmental organizations (NGOs) in advancing international criminal justice. I argue that NGOs have had considerable impact by contributing, among other things, to the global struggle against impunity through advocacy for the creation of more robust institutional mechanisms to prosecute those who perpetrate such crimes. This ranges from supporting the processes that led to the creation of several ad hoc international tribunals for Yugoslavia, Rwanda and Sierra Leone, all the way through to their support for the establishment of an independent permanent international penal court based in The Hague. The crux of my claim is that a historically sensitive approach to evaluating the role of NGOs in international governance shows that these entities are not only willing, but also capable of enhancing the protection of human rights and international criminal justice especially but not exclusively in less developed regions of the world.”).

    • Mark D. Kielsgard & Ken Gee-kin, Prioritizing Jurisdiction in the Competing Regimes of the International Criminal Court and the African Court of Justice and Human Rights: A Way Forward, 35 B.U. Int’l L.J. 285 (Apr. 2017). Available online.

      Kielsgard starts by stating the background to the fraught relationship between the AU and the ICC. Owing to this tension between the two entities coupled with the lack of cooperation/coordination with the not so operational ACJHR, the authors provide a logical reading of complementarity jurisdictions principles governing the ICC and its possible extension to the ACJHR. The paper also aims to provide insight into treaty interpretations and other obligations under the international law regarding the same. The emphasis of the paper remains on key articles of the Rome Statute such as Article 17(1), Article 27, and Article 98(1).

    • Karinne (Coombes) Lantz, Universal Jurisdiction: A Means to End Impunity or a Threat to Friendly International Relations?, 43 Geo. Wash. Int’l L. Rev. 419 (2012). Available online.

      Lantz argues that, under international law, states have the right to exercise universal jurisdiction over certain international crimes. Rather than disregarding international justice, such prosecutions may achieve justice by imposing individual responsibility for serious international crimes. It is undeniable, however, that difficulties may accompany the exercise of universal jurisdiction. Although there may be few legal restrictions on its use, states should adopt a balanced approach that makes universal jurisdiction a useful tool for ending impunity while minimizing the risks associated with its exercise. Ultimately, an international agreement may be required to resolve the outstanding disagreement among states surrounding the doctrine; until then, states should implement universal jurisdiction legislation and exercise it with care.

    • Konstantinos D. Magliveras, The Withdrawal of African States from the ICC: Good, Bad or Irrelevant?, 66 Neth. Int’l L. Rev. 419 (Nov. 2019). Available online, doi.

      Since 2009, there has been a serious antiparathesis between the African Union (AU) and the ICC, which, according to the AU, has principally concerned unjustified ICC prosecutions against African dignitaries. This has led certain African ICC parties to announce their withdrawal from it, while the AU adopted the so-called “ICC Withdrawal Strategy” in January 2017. This article analyses the background to and the content of the antiparathesis, it examines the consequences of the African parties’ withdrawal from the ICC as regards the large-scale impunity in Africa, and it proposes the creation of ICC regional circuit chambers as a possible solution to realign relations between the AU and the ICC. Specifically, the proposal suggests the creation of several ICC regional circuit chambers, each being responsible for the alleged crimes committed in the territory of ICC parties belonging to a specific continent. Pertinent solutions to the institutional and practical issues arising from this proposal are offered.

    • Tanaz Moghadam, Revitalizing Universal Jurisdiction: Lessons from Hybrid Tribunals Applied to the Case of Hissène Habré, 39 Colum. Hum. Rts. L. Rev. 471 (2008). Paywall.

      Moghadam explains that there are three issues with universal jurisdiction: jurisdictional imperialism, vulnerability to politicization and difficulties of implementation. It then explains that using hybrid tribunals could mitigate such issues. For example, a hybrid approach would help address the jurisdictional imperialism critique of universal jurisdiction cases through transnational judicial cooperation, depoliticize the proceedings, and enhance their credibility by facilitating the application of international legal norms in Senegal’s first such prosecution. It explains that hybrid tribunals are composed of both national and international judges which enables a product of collaboration rather than an external imposition. The benefits of such an approach are that it ensures the independence and legitimacy of proceedings in highly politicized contexts; promotes greater national or regional ownership over prosecutions; increases domestic capacity-building and norms transference and strengthens the statutory basis upon which universal jurisdiction cases can be brought. This article is relevant to our essay question because it demonstrates that using hybrid courts, which would fulfill the Prosecutor’s aim to “hand off” these cases.

    • Hilly Moodrick-Even Khen, Revisiting Universal Jurisdiction: The Application of the Complementarity Principle by National Courts and Implications for Ex-Post Justice in the Syrian Civil War, 30 Emory Int’l L. Rev. 261 (2015). Available online.

      (“In this article, I revisit the concept of universal jurisdiction in making a case for the application of mitigated universal jurisdiction in general and in the Syrian civil war case in particular, through the jurisdiction of sovereign states and their national courts. I argue that the international community will sooner or later demand that the perpetrators of the heinous war crimes and crimes against humanity be held accountable. However, since the jurisdiction of the International Criminal Court (ICC) will probably be impeded by the United Nations Security Council’s veto, the international community might use another trajectory for prosecuting the perpetrators of the alleged crimes. One possibility is to rely on the principle of universal jurisdiction, in its mitigated form, according to which Syrian leaders can be prosecuted under the jurisdictions of foreign states. I claim that mitigated universal jurisdiction, dependent mainly on its subordination to the principle of complementarity (also referred to as “subsidiarity” in the national legislation of some states), is still the best legal tool for doing ex-post facto justice with perpetrators of international core crimes in general and in the Syrian case in particular. This conclusion results from an analysis of the Syrian society, made in Section E of the article, according to which the chances are high that post-conflict Syrian society would have great difficulty undertaking the legal trials of perpetrators of international core crimes in good faith. Therefore, universal jurisdiction could serve as a practical tool for prosecuting those perpetrators of crimes in other states.”).

    • Rufai Muftau, African Union and Its Quest for Peace and Security: Challenges and the Way Forward, 48 Journal of Law, Policy and Globalization 116 (2016). Available online.

      The U.N. Secretary General remarked that: “I call on all warring parties to lay down their weapons and observe a global ceasefire. To them I say: Stop the killings and the destruction, and create space for lasting peace.” This statement is apt because there is no society that can progress without peace and security. Thus, at the international level, the U.N. inserted in its Charter the two concepts of peace and security. In furtherance of this, other regional bodies have followed suit. Because the society was simple in form in those days, it was easy to maintain relative peace and security. Presently, the situation has changed. This is attributed to many reasons ranging from rapid growth in population, modernization, intolerance of people among themselves, etc. As a result of all these and many others, continuous efforts are now geared towards the search for peace and security on the continent; yet, the desired results have not been achieved. In Africa, for example, most parts of the country have faced challenges of insecurity and terrorism, among others. Therefore, this paper is aimed at examining the efforts made by the African Union to promote peace and security among its members. This is desirous because peace and security are the focal points of the AU Charter. Although, one would want to ask what is the extent of achievements of its efforts in achieving this dream? The answer to this question would be revealed in the body of this work.

    • Jacky Fung Wai Nam, Jurisdictional Conflicts Between the ICC and the African Union—Solution to the Dilemma, 44 Denv. J. Int’l L. & Pol’y 41 (Jan. 2015). Available online.

      Fung Wai Nam covers universal jurisdiction as well as complementarity and contrasts the ICC’s Rome Statute and the Draft Protocols of the African Court of Justice and Human Rights (ACJHR). The author starts by introducing the need for Draft Protocols on grounds of the tension between the AU and the ICC and how it is a product of the “African Bias.” Furthermore, the author compares the jurisdiction principles under both the Statutes and how one seems more aggressive than the other. As analysis, the author points out the reasons of concerns and “incompatibility” between the two areas of law.

    • Sarah Nimigan, The Malabo Protocol, the ICC, and the Idea of ‘Regional Complementarity’, 17 J. Int’l Crim. Just. 1005 (Dec. 2019). Paywall, doi.

      The African Union (AU) has taken steps to regionalize international criminal law through the expansion of the African Court of Justice and Human Rights (ACJHR) vis-à-vis the Malabo Protocol. The principle of complementarity is a cornerstone of the Rome Statute which crystallizes a complementary relationship between the ICC and domestic legal systems under Article 17 but makes no mention of regional or ad hoc jurisdictions. Prospects for including regional jurisdictions within the principle of complementarity are contingent upon a positive judicial interpretation of the principle and clearly established obligations at each level. It will necessarily require funding and support by states. Such an approach will contribute to the ongoing development of a robust system of international criminal justice. In order to effectively resolve the issue of competing mandates and effective domestic implementation, a cooperative model needs to be espoused. Although hypothetical at present, the idea of regional complementarity is one worth thinking about in the context of constructive reform at the ICC. The prospective ACJHR offers a useful framework to analyse the potential role of regional mechanisms within the international criminal law project, broadly considered.

    • Xavier Philippe, The Principles of Universal Jurisdiction and Complementarity: How Do the Two Principles Intermesh?, 88 Int’l Rev. Red Cross 375 (Jun. 2006). Available online.

      Philippe addresses the relationships between the principles of universal jurisdiction and complementarity and the difficulties in their implementation. Even if the two principles are well known, there are still a number of obstacles—legal and non-legal—to proper and better implementation. Moreover, universality and complementarity are quite often to be applied in a difficult political environment, keeping in mind that these principles have to deal with international and national constraints. The number of obstacles is such that the two principles face many challenges. This article advocates that the principle of complementarity represents one aspect of the principle of universality and should rely on its general acceptance to further its efficiency and implementation. In conclusion, the article explores some possible ideas to be developed to reach this goal.

    • Rod Rastan, Testing Co-operation: The International Criminal Court and National Authorities, 21 Leiden J. Int’l L. 431 (Jun. 1, 2008). Paywall, doi.

      The Rome Statute sets up a system for enforcement whereby the Court’s decisions are to be effected by domestic authorities. This article explores the implications of this institutional design in terms of the legal tools at the Court’s disposal and the extent to which the ICC can adjudicate issues related to state co-operation. At the same time, it examines the responsibilities assumed by all States Parties under the Statute to secure compliance, including in situations where the requested national authorities are unwilling or unable to co-operate. It suggests that, to be successful, the co-operation regime under the Rome Statute will require a dynamic set of interactions between the individual state and the collective.

    • Joshua Ruby, An Evolutionary Theory of Universal Jurisdiction, 14 UCLA J. Int’l L. & Foreign Aff. 567 (2009). Paywall.

      (“This article seeks to harmonize the legitimacy of the principle of universal jurisdiction with its seemingly contradictory historical record. Different stages of universal jurisdiction exist, each marked by different justifications for exercises of nontraditional jurisdiction. Internationally cognizable offenses evolve through these stages. First, states defend exercises of universal jurisdiction based on combining, or pooling, their sovereign jurisdiction. Then jurisdiction is based on a mixed theory relying on both pooled jurisdiction and the severity of the crime. Finally, for a select set of offenses, states base jurisdiction purely on the character of the crime. Understanding universal jurisdiction as an evolution not only saves the legitimacy of universal jurisdiction from the seemingly contradictory historical record, but it also helps explain the selection of offenses and the complementarity principle in the Rome Statute, which established the International Criminal Court. One can understand the Rome Statute as an attempt both to expand the set of international crimes subject to universal jurisdiction based on the intrinsic character of the crime and to allow states to expand and solidify the principle of universal jurisdiction.”).

    • Cedric Ryngaert, The International Criminal Court and Universal Jurisdiction: A Fraught Relationship?, 12 New Crim. L. Rev. 498 (2009). Available online, doi.

      Ryngaert first discusses whether universal jurisdiction should be conferred on the ICC. The author suggests that conferring universal jurisdiction on the ICC is consistent with the Rome Statute’s purpose to end impunity for international crimes. He also posits that as a multilateral institution the ICC may be best equipped to withstand pressure from powerful states that do not want to see their nationals prosecuted. However, the author also cautions that conferring universal jurisdiction would likely further overburden the court and may disincentivize states from becoming or staying parties to the Rome Statute. The author ultimately concludes that universal jurisdiction should not be conferred onto the ICC because of these practical concerns. Next, the article discusses what the relationship between the Court and individual “bystander” states exercising universal jurisdiction should look like. The author explains that bystander states exercising universal jurisdiction are most successful where a number of practical requirements are all met. These requirements include sufficient resources to carry out an investigation and trial, access to crime scenes in the territorial state, and cooperation from the territorial state. A solution the author proposes is a “big fish versus small fry” approach in which the ICC would prosecute top-ranking officials while bystander countries could use universal jurisdiction to try lesser perpetrators. Utilizing this method the ICC could transmit evidence gathered in the prosecution of senior officials to aid in the bystander states’ prosecution of lower-level perpetrators.

    • Cedric Ryngaert, Universal Jurisdiction in an ICC Era, 14 Eur. J. Crim., Crim. L. & Crim. Just. 46 (2006). Paywall, paywall.

      Ryngaert introduces his paper by distinguishing between universal jurisdiction and international jurisdiction wherein he further explains how ICC is not equipped to handle all cases of IHL despite being governed by Article 14 (Principle of Complementarity) of the Rome Statute. Furthermore, he goes on to explain and analyze how Article 93(10)(a) of the Rome Statute helps ICC to exercise jurisdiction through national courts. In the next part of the paper, the author highlights that national prosecutors and courts are well placed to prosecute as well as adjudicate violations under IHL under specific circumstances, where universal jurisdiction has long lasting role to play. In the same part, the author criticizes the arguments raised by States that exercising universal jurisdiction violates the principles of legality, impartiality, and lack of resources. Lastly, the author offers ways in which the EU could play a role in strengthening the exercise of universal jurisdiction by its Member States.

    • Arif Saba & Sharam Akbarzadeh, The ICC and R2P: Complementary or Contradictory?, 28 Int’l Peacekeeping 84 (2021). Paywall, doi.

      The ICC and R2P share the goal of ending atrocity crimes. Nonetheless, they operate quite differently. Recently, there has been increasing support for bringing the ICC within the R2P toolkits, hoping they will complement each other to achieve their shared goal. The Security Council put this idea into practice to deal with the 2011 crisis in Libya. However, the invocation of ICC against the backdrop of an evolving military intervention under the R2P mandate highlighted significant risks to its integrity and legitimacy. This paper argues that the invocation of ICC to constrain violence and to hold accountable the Libyan regime for atrocity crimes eventually resulted in legitimizing military intervention and regime change under the R2P mandate. The Libya case suggests that neither the push for complementarity nor a full separation between the ICC and R2P benefits the ICC. There needs to be a balance between full engagement and separation. Such an alternative rests on the ICC avoiding entanglement with R2P’s military mandate, while maintaining close interaction with its non-military components through the Security Council. Lastly, the paper also points to areas in which the Council could play a more constructive role in cementing greater cooperation between R2P and the ICC.

    • Tatiana E. Sainati, Divided We Fall: How the International Criminal Court Can Promote Compliance with International Law by Working with Regional Courts, 49 Vand. J. Transnat’l L. 191 (Jan. 2016). Available online.

      Sainati looks at the situation in Kenya: the election violence in 2007–2008. During the course of the proceedings, Kenyatta lobbied to expand the jurisdiction of the regional East African Court of Justice in order to try the accused more locally. The article argues that the ICC should defer to regional courts where such courts are supported by transnational social movements networks of civil society groups, legal and political activists, and local human rights activists. Regional courts supported by such movements are better equipped to further the ICC’s goals by promoting compliance with international law at home and domesticating international human rights principles so that they resonate locally. The article argues that the ICC Prosecutor should apply criteria drawn from social mobilization theory to identify when regional courts are better positioned to domesticate international legal principles and secure compliance with international laws. This is relevant to our question because it explains that complementarity can be achieved by using regional courts, and it outlines the benefits of using such courts, namely that such courts are better positioned to prosecute local cases.

    • Ada Sheng, Analyzing the International Criminal Court Complementarity Principle Through a Federal Courts Lens, 13 ILSA J. Int’l & Comp. L. 413 (2007). Available online.

      Sheng walks through the similarities between international criminal court and the United States federal court system. Specifically, he compares the doctrine of complementarity in the ICC’s exercise of jurisdiction to that of state exhaustion in the federal courts’ exercise of jurisdiction.

    • Matiangai V.S. Sirleaf, Regionalism, Regime Complexes and the Crisis in International Criminal Justice, 54 Colum. J. Transnat’l L. 699 (2016). Available online, doi.

      Sifleaf discusses the 2014 creation of the African Court of Justice and Human Rights (ACJHR), by resolution of the AU. She explains that this court goes further than the ICC in regard to range of crimes covered (e.g., corporate criminal liability) but is narrower on jurisdiction for heads of state (giving heads of state and high-ranking officials immunity). The author gives a succinct summary of the 2009 “crisis between the ICC and AU ” where the AU decided to stop cooperating with the ICC, at a time when all of the ICC’s matters involved African conflicts. In response to concerns that the ICC was a “European Court for African Affairs,” that it was part of a “neo-imperialism” framework, the de-legitimizing effect of the ICC’s “live indictment” practice, and the hypocrisy of 3/5ths of the S.C.’s veto-power wielding permanent members did not ratify, the AU moved towards a more regional approach to adjudicating transcontinental criminal liability. The author argues that: the creation of the ACJHR will contribute to “emerging regime complex” (“several legal agreements that are created and maintained in distinct fora with participation of different sets of actors”) which will “likely magnify the fragmentation of international criminal law.” The lack of hierarchy in international criminal courts creates a ripe setting for this to occur, resulting in “incoherence, inconsistency, and fragmentation.” Consequences of this may include: forum shopping (ACJHR vs other regional bodies vs ICC) leading to less stringent consequences for offenders; decrease in referrals by African states-parties to the ICC; and reduction in S.C. referrals due to complementarity principles. On the positive side, the author observes that it may lead to more supervision and international norm setting of region-specific human rights issues, as has occurred with the Inter-American Court which (at the time, in 2015) was “monitoring prosecutions of 51 cases in 15 countries.” The author concludes that “regional complexes are here to stay” and that it is hard to say if they will result in more or less justice being administered.

    • Justine Tillier, The ICC Prosecutor and Positive Complementarity: Strengthening the Rule of Law?, 13 Int’l Crim. L. Rev. 507 (Jan. 2013). Paywall, doi.

      (“The purpose of this study is to examine the practice of the Prosecutor of the International Criminal Court with regard to his/her policy of positive complementarity. This policy aims at encouraging domestic jurisdictions to investigate and prosecute perpetrators of core international crimes. In order to achieve this goal, the Prosecutor can act at various stages of the proceedings. First at the preliminary examination phase, where he/she will determine if conditions of admissibility are met, and secondly at the investigation and prosecution phases of the proceedings. This study shows that the ability of the Prosecutor to pursue such a policy is real, but limited, as his/her core mandate, is to bring perpetrators of international crimes before the International Criminal Court. Consequently, the implementation of the policy of positive complementarity must be envisioned in collaboration with other actors working on Rule of Law Programs. In this respect, the Prosecutor must engage in cooperation with international organizations and civil society actors.”).

    • Christopher D. Totten & Nicholas Tyler, Arguing for an Integrated Approach to Resolving the Crisis in Darfur: The Challenges of Complementarity, Enforcement, and Related Issues in the International Criminal Court, 98 J. Crim. L. & Criminology 1069 (2008). Available online.

      Totten and Tyler examine how the complementarity principle can be applied to the conflict in Darfur, Sudan. Some solutions include having Sudanese special courts try some of the low-level criminals while the ICC focuses on the leaders of the human rights violations. A Sudanese truth commission could also help create a record of atrocities while providing specific recommendations that can directly impact victims’ lives.

    • Jenia Iontcheva Turner, Transnational Networks and International Criminal Justice, 105 Mich. L. Rev. 985 (Mar. 2007). Available online.

      Some of the great efforts of non-governmental organizations include gathering and disseminating information about developments in international criminal law, providing resources, helping draft legislation, and training local authorities to investigate and prosecute international crimes. However, there is concern over NGO participation due to a possible lack of accountability. The ICC can also help sustain robust intergovernmental cooperation between different countries. When national authorities lack the capacity or willingness to prosecute international crimes on their own, the ICC can collaborate with them to promote domestic enforcement of international criminal law.

    • Ariel Zemach, Reconciling Universal Jurisdiction with Equality Before the Law, 47 Tex. Int’l L.J. 143 (2011). Available online.

      Zemach proposes a reform in the international law of universal jurisdiction that would ameliorate, as far as possible, the problem of inequality before the law in the exercise of universal jurisdiction. This reform introduces limitations on the liberty of states to “choose their battles” in the enforcement of international criminal law. The proposed reform assigns a pivotal role to the ICC. It sets forth a mechanism by which the ICC would designate particular states to exercise universal jurisdiction over crimes relating to a particular situation. Such designation would be a precondition for a state’s liberty to exercise universal jurisdiction. The legal regime advocated here would thus replace the existing norm of international law that allows any state to exercise universal jurisdiction over core international crimes. This Article demonstrates that the proposed designation mechanism would constitute, in and of itself, a substantial guarantee of equality before the law in the exercise of universal jurisdiction. This article then proceeds to propose prosecutorial guidelines that, under the proposed reform, a state would be required to apply in its exercise of universal jurisdiction. Finally, it sets forth a mechanism that would allow the ICC Prosecutor to monitor the compatibility of a state’s exercise of universal jurisdiction with the principle of equality before the law. This international oversight mechanism is tailored with a view to minimizing, as far as possible, both sovereignty and economic costs for the state exercising universal jurisdiction.

  • Books (alphabetical by author)

    • Olympia Bekou, Regionalising ICC Implementing Legislation: A Workable Solution For The Asia-Pacific Region?, in Regionalising International Criminal Law in the Pacific, 117 (Neil Boister & Alberto Costi eds., 2006). Available online.

      Bekou discusses the possibility of working regionally to get states to adopt ICC implementing legislation with an aim at improving complementarity. Uses the case study of Samoa. Advances practical strategies to improve complementarity regionally: (1) regional capacity building, (2) adoption of legislation from neighbor states, and (3) adoption of a legislative “model” that has been developed by regional organizations.

    • Margaret M. deGuzman, Complementarity at the African Court, in The African Court of Justice and Human and Peoples’ Rights in Context 645 (Charles Chernor Jalloh, Kamari Maxine Clarke & Vincent Obisienunwo Orlu Nmehielle eds., 2017). Available online.

      deGuzman explores the relationships between the African Court of Justice and Human Rights (ACJHR), ICC, national courts, and other possible sub-regional courts. The author first provides a comparative overview of the complementarity provisions in the ACJHR’s protocol and those in the Rome Statute. The author then explores different theories about how regional courts, national courts, and the ICC should interact with one another. The author ultimately concludes that these different court systems should be regarded as a “menu of adjudicative options” that can engage in prosecutorial burden-sharing considering the facts of each situation as well as each institution’s relative strengths and weaknesses. The author argues that the ACJHR, and other regional courts, often have more familiarity with the legal and cultural norms in the affected societies and can use this special expertise to effectively prosecute crimes that are well-established in international law locally. However, the author posits that the ICC is still the best forum for prosecuting recently criminalized international crimes such as the recruitment and use of child soldiers where clear international norms have not developed.

    • Godfrey M. Musila, The Role of the African Union in International Criminal Justice: Force for Good or Bad?, in The International Criminal Court and Africa: One Decade On 299 (Evelyn A. Ankumah ed., 2016). Available online, doi.

      Musila “discusses the evolving roles of the African Union and its various organs—political, deliberative and judicial. The contribution argues that regional and sub-regional bodies have a role to play in international criminal justice: directly in respect of prosecutions at the international and national levels; and indirectly in a number of other ways that has a bearing on international criminal justice. Noting that this involvement by regional and sub-regional bodies in international criminal justice is for the most part novel, it argues that this heralds a new and exciting era of engagement that should contribute to the fight against impunity and by extension to peace and security on the continent. However, the approach adopted (ad hoc, reactive and in some measure antagonistic) and certain measures taken by some of these bodies have the potential of undermining or rolling back gains made so far in the fight against impunity…[the author] argues that while the potential contribution of the regional and sub-regional bodies under discussion cannot be underrated, various factors dictate a reasoned and politically prudent approach that recognises the important—yet in some crucial respects limited ability of these bodies to respond effectively and speedily to international crimes. While suggesting that judicial mechanisms at this level fit within a broadly conceived notion of complementarity in international criminal justice and respond to the imperative of burden sharing with the permanent International Criminal Court in responding to atrocities and international crimes, it argues that it is critical to recognise the legal and practical limitations attendant to their variety of mandates.” The article reads as a piece written to encourage more funding for regional organizations and justify local (national/regional) action in place of ICC action. Praises the AU as being more proactive, attentive to local needs etc., but lacking in resources. No mention of corruption or inefficiency issues. Highlights failure of ICC to stop violence in Darfur, or give enough attention to reconciliation-based justice, which presumably the AU would be better at implementing.