Invited Experts on Decentralized Accountability Question

Burke-White Avatar Image William W. Burke-White, J.D., Ph.D. Professor of Law University of Pennsylvania Carey Law School

Proactive Complementarity (Revisited)

The single most powerful tool available to the ICC to catalyze such territorial prosecutions remains the threat of ICC prosecution. […] In short, most states do not want the ICC to step in and supplant their own domestic judicial processes. So they may become more willing to undertake prosecutions themselves in the face of a pending international prosecution. […] The ICC has a proven (albeit imperfect) track record of indictments, arrests, and prosecutions. That track-record is now a form of political capital that the ICC can rely upon to show national governments that when the Court decides to prosecute, it will actually do so.

Summary

Fifteen years ago, I argued that the International Criminal Court (ICC) should implement a strategy of “proactive complementarity” or, as some have called it, “positive complementarity.”1 Under this model, the ICC would take an active approach in encouraging and supporting domestic prosecutions of international crimes, particularly in the state in which those crimes occurred. A significant consideration in my argument was that the mere threat of prosecution by an international tribunal could incentivize territorial states to prosecute such crimes so as to avoid international intervention and supervision. Initial evidence, from cases including Bosnia (where the ICTY was actively undertaking prosecutions) and the Democratic Republic of the Congo (where the ICC was active) supported this pathway to domestic accountability.2

When I put those arguments forward, the ICC was still a brand-new institution, building its capacities and opening its first investigations. Attention was focused far more on how the ICC might get cases and apprehend suspects than it was on how the ICC might get rid of cases and send suspects back to national jurisdictions. Fifteen years later, the question has flipped. With seventeen situations under investigation and more than fifty individuals indicted,3 it has become clear that the ICC—no matter how efficient or well-resourced it becomes—cannot prosecute all the cases currently before it, much less the full range of serious international crimes occurring in the world today. Some have described it as a “capacity crisis” that “threatens not only the ICC’s effectiveness, but also its legitimacy.”4

While the case overload at the ICC is problematic, the broader structural considerations that limit the Court’s capacity are not. In fact, those structural limitations should be embraced. During the negotiation of the Rome Statute in 1998, the ICC was conceived of as a Court of limited jurisdiction, secondary to national courts. After all, the Preamble to the Rome Statute makes clear that it is the duty of states “to exercise its criminal jurisdiction over those responsible for international crimes” and that the Court is “complementary to national criminal jurisdictions.”5

While the young ICC—particularly under its first two prosecutors—focused on building its own capacities, it was reluctant to actively engage with national jurisdictions to encourage their own prosecutions of international crimes. ICC officials did, of course, take part in consultations and trainings in some states in which it was undertaking investigations. But it did not make it an institutional priority to systematically advance and support national prosecutions of international crimes, especially those under active ICC investigation. The time has come for it to do so. In fact, today’s more mature ICC has far more capacity and influence to actually catalyze national prosecutions than it did back in 2005.

Cassel Avatar Image Professor Douglass Cassel Professor Emeritus of Law University of Notre Dame Law School

Safeguards for ICC Complementarity: Challenging in the Best of Circumstances

The ICC does not have the human or budgetary resources to prosecute large numbers of cases in The Hague. Developed judicial systems like those of Colombia have far greater quantitative capacity. And even the limited numbers of cases that can be tried in The Hague face higher costs of transportation and translation; legal barriers of jurisdictional obstacles (e.g., complementarity) not faced in national prosecutions; and less direct access to the trial by victims, witnesses, the concerned public, and the national media. All things being equal, national trials are preferable to international trials.

Summary

What safeguards should be implemented by the International Criminal Court (ICC) prosecutor to assist national authorities in the exercise of universal jurisdiction? The best example I know of is the set of safeguards that evolved during the ICC’s longest running preliminary examination in any State—Colombia.

From 2004 to 2021, the ICC conducted a preliminary examination1 of crimes against humanity in Colombia.2 In 2009, Colombia’s transitional declaration which excluded ICC jurisdiction over war crimes expired.3 Thereafter the preliminary examination covered war crimes as well, until it was closed in 2021. Throughout the preliminary examination, and continuing today under a Cooperation Agreement with the State which ended the examination (without prejudice to renewing it if necessary),4 the ICC prosecutor adopted—and the State acquiesced or agreed to—an important set of safeguards. Although not “always readily transferable to other situations,”5 the ICC safeguards in Colombia nonetheless constitute a “valuable experience that may be replicated in other situations around the world.”6

The safeguards in Colombia supplement the ICC prosecutor’s more general policy on complementarity adopted in 2013.7 That policy addresses mainly the substantive standards for complementarity, such as whether a State is “genuinely” willing to prosecute.8 In contrast, most of the safeguards agreed to in Colombia are more procedural in nature, governing the relationship between the ICC prosecutor and the national authorities.

The ICC safeguards in Colombia are summarized below. However, they were (and remain) focused on investigations of alleged crimes committed in Colombia by Colombians. At times, alleged perpetrators sought refuge in neighboring Ecuador and Venezuela. Yet Colombia did not exercise “universal jurisdiction” in the pure sense of a State prosecuting foreign citizens for crimes against foreign victims on foreign territory, based solely on the gravity of the crime. Nor did Colombia exercise universal jurisdiction even in the hybrid sense of prosecuting heinous foreign criminals based solely on their passing presence in its territory.9

Whether in the exercise of true or hybrid universal jurisdiction, additional safeguards beyond those implemented in Colombia may need to be adopted, as suggested two decades ago by three members of the International Court of Justice.10 Part I of this comment addresses the Colombia safeguards. Part II considers additional safeguards where a State Party to the ICC undertakes to exercise universal jurisdiction (whether pure or hybrid) over foreign citizens.

deGuzman Avatar Image Professor Margaret M. deGuzman James E. Beasley Professor & Co-Director, Institute for International Law and Public Policy Temple University, Beasley School of Law

The ICC Office of the Prosecutor Should Be Guided by the Principles of Burden Sharing and Comparative Benefit in Its Engagement With Regional Courts and National Courts Exercising Universal Jurisdiction

[The ICC] should adopt a horizontal, burden sharing approach that recognizes the distinct interests of various communities and seeks to maximize overall benefits, while avoiding harm, especially to the communities most directly affected by international crimes. […] [A]lthough the global community is a “thin” community, it has distinct values and goals that the ICC, and courts exercising universal jurisdiction, may legitimately pursue.

Summary

Over the two decades since the International Criminal Court (ICC or Court) became operational, any illusions its founders had that it alone could “end impunity” for serious international crimes have been dispelled. Although the ICC has made impressive strides, particularly in its expression of global norms concerning such under-prosecuted crimes as conflict-related sexual violence,1 the use of child soldiers,2 and the destruction of cultural heritage,3 its resources are vastly disproportionate to the crimes being committed. Therefore, to make progress toward the goal of ending impunity, the ICC must operate as part of a network of accountability mechanisms, including not only national courts with traditional forms of jurisdiction,4 but also those exercising universal jurisdiction, as well as regional courts with jurisdiction over international crimes. The effectiveness of this accountability network depends on thoughtful, principled cooperation among institutions.

This comment proposes two principles to guide the ICC Office of the Prosecutor’s (OTP) engagement with regional courts and national courts exercising universal jurisdiction.5 The first is burden sharing. Although many of the Court’s founders seem to have envisioned the institution as operating in a hierarchically inferior position relative to national courts with traditional forms of jurisdiction, in practice the Court has adopted a horizontal, burden sharing approach in regard to those courts. This principle should also guide the OTP’s engagement with regional courts and national courts exercising universal jurisdiction.

Second, the ICC should implement a principle of comparative benefit in determining when and how to interact with regional courts and national courts exercising universal jurisdiction. It should perform an assessment of the relative benefits and risks of harm from prosecutions in all potential fora to determine which institution is best placed to advance the most important goals of relevant communities. In this context, relevant communities include global and regional communities as well as the national communities most directly affected by the crimes. In establishing priorities among the goals of these diverse communities, the OTP should be careful to avoid causing harm to the communities most directly affected by the crimes.

Hamran Avatar Image Ladislav Hamran President Eurojust

Cooperation Between the Office of the Prosecutor of the ICC and States Exercising Universal Jurisdiction1

Many States have introduced the principle of universal jurisdiction into their national criminal codes. However, the mere existence of domestic legislation does not automatically mean that States can also carry out effective investigations into core international crimes. In fact, only a relatively small number of States has applied universal jurisdiction in practice and the reasons for this are manifold. As in any criminal proceeding, the road towards justice must be paved by solid and admissible evidence. Reconstructing and proving the circumstances under which a core international crime was committed can be like solving a 1000-piece puzzle without having the final image to guide you. It requires many hours of labor carried out by highly qualified personnel as well as robust political support.

Argument

On July 17, 1998, at the end of a six-week diplomatic conference in Rome attended by over 160 States, an agreement was reached that would forever change the global legal landscape. For the first time in the history of mankind, a permanent, treaty-based International Criminal Court (ICC or the Court) was to be set up with the mandate to exercise jurisdiction over persons for the most serious crimes of international concern.

The founding treaty of the Court, the Rome Statute, defined a new international criminal justice mechanism that became known as the Rome Statute system. This system is composed of two independent building blocks: domestic proceedings in front of national courts and international proceedings carried out by the ICC. Their mutual relationship is governed by the principle of complementarity, as defined in the Rome Statute, Preamble Paragraph 10, and Articles 1 and 17.

The complementarity principle puts sovereign States at the forefront of the fight against impunity for the most serious international crimes committed during armed conflicts. It reminds the international community of the fact that the prime responsibility for bringing perpetrators of war crimes, crimes against humanity, and genocide to justice lies with national jurisdictions.2 The role of the ICC is complementary and the Court may only exercise its jurisdiction if a State Party is unwilling or unable to carry out national proceedings in a particular case.

As a rule, States prosecute crimes committed either on their territory, or committed by or against their own nationals. However, during armed conflicts, national authorities are not always in a position to meet the obligation to investigate or prosecute suspects of core international crimes. In some cases, there is an unwillingness to conduct objective, impartial, and independent investigations and prosecutions. Corrupt national proceedings either shield perpetrators from criminal responsibility or result in unjustified delays that are inconsistent with a genuine intent to ensure accountability. In other cases, States affected by an armed conflict are unable to effectively prosecute war criminals due to a substantial or total collapse of their national judicial system.

In principle, the absence of (effective) national proceedings could justify the exercise of jurisdiction by the ICC. However, Paragraph 6 of the Preamble of the Rome Statute calls on every State to exercise its criminal jurisdiction over those responsible for international crimes. They could do so based on the principle of universal jurisdiction, reflecting that:

[C]ertain crimes are so harmful to international interests that States are entitled—and even obliged—to bring proceedings against perpetrators, regardless of the location of the crime and the nationality of the perpetrator or the victim.3

This gives States the possibility to investigate crimes committed thousands of miles away with no personal link to their own territory.

Hovell Avatar Image Professor Devika Hovell Associate Professor of Law London School of Economics and Political Science

Modern Guidelines for Universal Jurisdiction

Domestic criminal trials respond deliberately to the community on whose behalf they are conducted, drawing juries from within that community, prosecuted by representatives of that community, conducted in the language of that community, enforcing laws enacted for that community, publicized by media within that community, overseen by and accountable to that community. By contrast, universal jurisdiction produces deracinated trials, uprooted from their natural social, geographical, linguistic, and cultural environments. Domestic criminal courts are not accustomed to engaging with external communities, providing little scope for any ethic of responsibility toward external communities, participants, or interests.

Summary

I. Introduction

The “justice cascade” may have started as a trickle but is generating momentum.1 The last few decades have witnessed the establishment of a steady stream of international criminal tribunals, including ad hocs, hybrids, specialist courts, and of course the permanent International Criminal Court. In more recent years, there has been a surge in the domestic prosecution of international crimes through the mechanism of universal jurisdiction. This bricolage of international criminal prosecutions is increasingly in need of systematization.

This is not a call for a hierarchy of courts, with the ICC at its apex. A common mistake, at least in the public mindset, is to see the ICC as the ultimate terminus for international criminals. As is well known by international criminal lawyers, the ICC was not created as a “last stop” but as a “last resort”. As the first ICC Prosecutor declared at his swearing-in, “the absence of trials before [the ICC], as a consequence of the regular functioning of national institutions, would be a major success.”2 In his latest Annual Report, the current ICC Prosecutor Karim Khan explained the importance of transforming the role of the ICC from an “apex court” into a “hub” for cooperation and engagement.3 While the ICC was established to generate a caseload of international criminal prosecutions, the goal was not simply to attract cases to the ICC but to deflect cases to other fora, encouraging burden-sharing of the prosecution load with domestic courts. The justice cascade must be mainstreamed through domestic legal systems if international criminal law is to have the capacity to fulfil its objectives.

Universal jurisdiction offers great potential for expanding the reach of international criminal law. Yet it also creates difficult and under-appreciated challenges for domestic courts. Universal jurisdiction involves the prosecution of extraordinary crimes through ordinary means. Yet much about international criminal law can be lost through recourse to the ordinary. The under-appreciated factor is that such trials share more in common with international criminal law than domestic criminal law. While the temptation is for domestic judges to proceed with “business as usual” in the conduct of universal jurisdiction trials, this can ignore certain incompatibilities between domestic and international criminal justice. The DNA of universal jurisdiction trials differs in important ways from other domestic criminal trials, connecting domestic courts to a different set of communities, interests, crimes, and cultures.

This comment proposes the development of a set of guidelines—an optimistic precursor to an eventual treaty—to guide the conduct of universal jurisdiction trials. The guidelines could be developed under the auspices of the ICC, building in an advisory role for the ICC in monitoring and guiding the conduct of universal jurisdiction prosecutions. A modest starting-point is provided in the Annex to this comment, outlining modern guidelines for the conduct of universal jurisdiction trials (hereinafter Modern Guidelines). The idea is to update our understanding of universal jurisdiction; explaining the contemporary contribution of universal jurisdiction, its distinctive nature, and the particular challenges generated by its trials. In particular, four distinct problems are identified that need to be addressed in its contemporary application: the public problem, the selectivity problem, the proof problem and the translation problem.

Langer Avatar Image Professor Máximo Langer David G. Price and Dallas P. Price Professor of Law UCLA School of Law

The ICC’s Office of the Prosecutor Should Foster and Cooperate with Universal Jurisdiction Prosecutions Before National Authorities

Universal jurisdiction and ICC trials are not always fully comparable because while the universal jurisdiction trials have often been held against low-level and middle-level defendants, ICC trials have typically been held against high-level defendants. Trials against high-level defendants tend to be more complex than against low- and middle-level defendants because the former are not always involved in the direct perpetration of international crimes and tend to be responsible for a larger number of crimes. However, the much larger quantity of universal jurisdiction verdicts than ICC verdicts highlights the important role that universal jurisdiction trials before domestic courts have played since the ICC Statute came into effect […]. They also show that universal jurisdiction states collectively have more capacity than the ICC to prosecute international crimes.

Summary

I. Introduction

In the last forty years, there has been a remarkable expansion in efforts aimed at establishing criminal accountability for individuals involved in committing international crimes. Prosecutions before national courts, ad hoc international criminal tribunals created by the United Nations Security Council (S.C.), hybrid criminal tribunals that have combined national and international elements in various ways, investigative mechanisms set to gather elements of proof to be used by various jurisdictions, proposals to create regional criminal tribunals, and the International Criminal Court (ICC or the Court) have all collectively advanced the notion that those who commit international crimes should be held accountable for their actions.

Among these efforts, the ICC is the only permanent international criminal court with jurisdiction over crimes against humanity, genocide, war crimes, and crimes of aggression. The ICC is the result of a Treaty that was drafted with widespread participation from states and numerous nongovernmental organizations; it currently has 123 state parties. As such, the ICC and its Office of the Prosecutor (OTP) have played a unique role in holding those who commit these international crimes accountable since the Rome Statute came into effect on July 1, 2002.

Prior to, and concurrently with, the creation and work of the ICC, many states have made their laws extraterritorially applicable and granted universal jurisdiction to their courts over crimes against humanity, genocide, torture, and war crimes. Under universal jurisdiction, any state may prosecute certain crimes, even if the state in question lacked any territorial, national, or national-interest link with the alleged crime when the crime was committed. The jurisdictional claim is rather based on the nature of the crime. Using this principle, various states have launched prosecutions and held criminal trials before their national courts for the commission of international crimes within the territories, involving, and against the nationals of other states.

This comment1 argues that the ICC’s OTP should do more to support and engage with national authorities exercising universal jurisdiction for four reasons:

  1. First, both the ICC and universal jurisdiction prosecutions share the goal of holding accountable those who commit international crimes.

  2. Second, it is in the very nature of the ICC to collaborate with and support prosecutions and trials before national courts.

  3. Third, universal jurisdiction prosecutions before national courts have proven to possess the capacity to handle a greater number of cases than the ICC.

  4. Fourth, universal jurisdiction cases before national courts have supplemented the work of the ICC by concentrating on international crimes that fall outside the default jurisdiction of the Court.

Universal jurisdiction prosecutions also have the potential to supplement the ICC’s work by addressing cases within the ICC’s jurisdiction. However, universal jurisdiction prosecutions have not realized this potential. Thus, the OTP could do more to encourage and support universal jurisdiction prosecutions that fulfill this supplementary function.

McDougall Avatar Image Dr. Carrie McDougall, Ph.D. Senior Lecturer University of Melbourne

The Proposed Special Tribunal for Crimes of Aggression Committed Against Ukraine Should Be Viewed as an Accountability Partner, Not a Competitor: Should the Tribunal Be Established, the ICC Should Cooperate With It to the Greatest Extent Possible

The crime of aggression has a controversial history because of its proximity to States’ core national security interests, such that securing support for the [amending the Rome Statute] is likely to be challenging. Add to this the fact that any amendments would have to be ratified by seven-eighths of States Parties to enter into force, and arguably could not have retrospective effect, and it becomes fairly obvious that this initiative is extremely unlikely to provide a path to the investigation and prosecution of crimes of aggression that have been committed against Ukraine.

Summary

A special tribunal to prosecute crimes of aggression against Ukraine needs to be established in light of the lack of International Criminal Court (ICC) jurisdiction over these particular crimes of aggression, and the existence of significant impediments to any successful prosecution of these crimes domestically. Should the international community be able to agree on the proposed tribunal’s establishment, the tribunal should be viewed as a natural partner in the ICC’s fight against impunity, not a competitor. For this reason, the institutions should extend each other the greatest possible cooperation, limited only by conditions found in their respective legal frameworks, such as the need to take measures to ensure the protection of witnesses. Such mutual cooperation would be consistent with the Rome Statute, and should be governed by a cooperation agreement, complemented by any necessary arrangements covering matters that need to be kept confidential. The range of matters in respect of which cooperation would be beneficial is wide, but includes the sharing of information and evidence, and an agreement on the sequencing of the trials of persons indicted by both institutions.

Argument

The criminal justice response to the serious international crimes being perpetrated in Ukraine is extraordinary. It includes the referral of the situation in Ukraine to the ICC by forty-three States, eight years after Ukraine’s initial ad hoc acceptance of the ICC’s jurisdiction, but just days after the February 24, 2022 Russian invasion;1 the provision of extensive international support for Ukraine’s investigation and prosecution of serious international crimes;2 and the opening of large-scale criminal investigations by a plethora of other States.3 It is self-evident that this unprecedented accountability response will require extensive coordination and cooperation: a fact reflected in the establishment of multiple coordination mechanisms, including the Joint Investigation Team into alleged core international crimes committed in Ukraine (in which the ICC Office of the Prosecutor (OTP) is a participant),4 the International Centre for the Prosecution of the Crime of Aggression against Ukraine (ICPA),5 and the Atrocity Crimes Advisory Group.6 Such coordination and cooperation must be extended to include the proposed special tribunal for the prosecution of crimes of aggression committed against Ukraine, should the political will for the establishment of such a tribunal be able to be generated.

Ntahiraja Avatar Image Bernard Ntahiraja, Ph.D. Associate Professor University of South-Eastern Norway

Decentralized Accountability via Ad Hoc National Regionalized Judicial Bodies in Africa: A Potential Role for the ICC?

The absence of a single ratification of the Malabo Protocol, nine years after it was adopted, is not a sign of state enthusiasm for that instrument, to say the least. […] Therefore it is no exaggeration to suggest that African States are not particularly interested in the Malabo project. Consequently, it is fair to say that the African Court on Human and Peoples’ Rights is not exercising criminal jurisdiction any time soon. […] It should come as no surprise that African states are not enthusiastically ratifying the Malabo Protocol. From the time it was being discussed, some observers argued that the need to fight against impunity was not the main motivation behind the project. […] The idea was, at least according to Murungu, to create a competitor to the Hague Court. Others have seen in the Malabo Protocol an effort to score political points against the ICC rather than address the need for justice and accountability for crimes under international law.

Summary

One of the most important principles of the Rome Statute is complementarity.1 According to this principle, preventing and punishing atrocities is primarily the responsibility of states on whose territories they have been committed—or which might have jurisdiction on another accepted basis in international law. The International Criminal Court (ICC) intervenes when states fail to conduct investigations and prosecutions, or where they purport to do so but are unwilling or unable to genuinely carry out proceedings.2 Luis Moreno-Ocampo, the first ICC Prosecutor, was articulating complementarity when he stated that the Court’s success was to be measured, not on the number of trials it would conduct but rather on the absence of trials if the latter was the result of the work of effective and functioning national systems.3

From its early years, the ICC’s Office of the Prosecutor (OTP) has adopted what has been called a “positive approach” to complementarity.4 This means that, in addition to letting national authorities take the first initiatives for accountability, the OTP actively encourages them to do so and supports them as much as possible. For several reasons though, experience shows that national authorities do not often prosecute international crimes. For the international criminal justice project to bear palpable fruits, it is therefore inevitable to look at the possibilities of involving other actors, i.e. regional and subregional organizations. One problem, though, is that the relationship between the ICC and any entity other than state parties and their judiciaries is still largely unregulated, the relationship with the Security Council of the United Nations being the exception.

This comment argues for the establishment of a sustainable cooperation mechanism between the ICC and the African Union (AU) for the support of regionalized judicial bodies on the lines of the Extraordinary African Chambers (EAC) created within the Senegalese judicial system to try former Chadian President Hissène Habré. This comment first discusses why this is the preferable form of cooperation in today’s African context, before discussing what the content of the potential agreement would be.

Argument

I. Why Regionalized Judicial Bodies?

In today’s African context, as far as international criminal justice is concerned, national regionalized bodies are preferable first because the initially planned Criminal Section within the African Court on Human and Peoples’ Rights is realistically not coming soon. It could also be argued that regionalized judicial bodies are (would be) closer to victims than proper regional courts or sections of regional courts on the Malabo Protocol model. As part and parcel of national judiciaries, they would also have a more lasting impact and create foundations for a sustainable mechanism of international criminal law enforcement.

A. Poor Prospects of the Planned Criminal Section Within the African Court on Human and Peoples’ Rights Versus The Promises of the EAC Formula

In the African Context, the first attempt to regionalize accountability for international crimes was made by adopting the “Protocol on the amendments to the Protocol on the Statute of the African Court of Justice and human rights,” often referred to as the Malabo Protocol.5 The Malabo Protocol was adopted on June 27th, 2014, by the twenty-third Ordinary Session of the Assembly of the AU, held in Malabo, Equatorial Guinea. To enter into force, the Malabo Protocol needs to be ratified by fifteen states.6 To date, the Malabo Protocol has been signed by fifteen states but not even one state has ratified it.7

Ryngaert Avatar Image Professor Cedric Ryngaert Professor of Public International Law Utrecht Centre for Accountability and Liability Law

How, and to What Extent, Should the ICC’s Office of the Prosecutor Engage With National Authorities Exercising Universal Jurisdiction?

When states and the ICC exercise jurisdiction, they may mutually reinforce each other’s work, especially in cases where they investigate the same crime situation. Applying positive complementarity, the ICC Prosecutor already shares knowledge, expertise, and best practices with domestic law-enforcement agencies, but more could perhaps be done with regard to UJ states. The Ukraine situation presents itself here as a unique opportunity for the ICC and UJ states. Future cooperation, in respect of other situations, could build on what is currently unfolding.

Summary

I. Introduction

The International Criminal Court (ICC) is the most visible international criminal justice mechanism. However, it cannot possibly ensure accountability for international crimes on its own. Its jurisdiction and resources are limited, and its role is only complementary to that of states. States remain the primary purveyors of international criminal justice. This also include states exercising universal jurisdiction (UJ), i.e., jurisdiction that is not based on a (territorial, national or security) nexus with the prosecuting state, but is based on the gravity of the crime.1 Over the years, UJ has been “quietly expanding”,2 as a result of ICC implementation legislation, activism by non-governmental organizations, and the establishment of specialist law-enforcement units dedicated to the investigation and prosecution of international crimes.3

As both the ICC and UJ states have jurisdiction over international crimes—and sometimes even exercise this jurisdiction over the same situation—the question arises how, and to what extent, the ICC should engage with national authorities exercising UJ. In this comment, I argue that the ICC and UJ states may want to strengthen cooperation, including coordination of investigations and exchange of best practices. The ICC and UJ states that are members of the European Union (EU) have recently seized this opportunity in the Ukraine situation: the ICC’s Office of the Prosecutor (OTP) for the first time joined a Joint Investigation Team (JIT) established by Eurojust, the EU Agency for Criminal Justice Cooperation between EU member states.4 The ICC and UJ states may want to build on this experience for other situations as well, while nevertheless retaining their autonomy.

In Part II, I briefly discuss the proper place for UJ in the international criminal justice project. Subsequently, in Part III, I inquire how the ICC Prosecutor and UJ states could effectively team up in the investigation and prosecution of international crimes.

Sadat Avatar Image Leila Nadya Sadat, J.D., L.L.M, D.E.A., Ph.D. (hon.) James Carr Professor of International Criminal Law Washington University School of Law

The Promise and Perils of the ICC Prosecutor’s Engagement with External Stakeholders

I conclude that it will be important for the OTP not to take a “one-size fits all” approach in developing modalities for cooperation with national, regional, or other authorities or organizations in investigating and prosecuting international crimes. While keeping the OTP’s door open for cooperation is important, and the Rome Statute contemplates this, there are challenges to implementing the hub system proposed by the Strategic Plan. Indeed, as regards situation countries, cooperation is likely to be more of an exception than a rule, even as regards ICC States Parties.

Argument

Introduction

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) is often requested or required to participate or collaborate with external stakeholders in achieving accountability for the commission of grave crimes under international law. Indeed, Prosecutor Khan’s new Strategic Plan focuses extensively upon the engagement of the OTP with entities and persons outside the building, and five of the ten goals set forth in the Plan focus upon the Office’s relationship with external stakeholders.1 In addition to civil society and afflicted communities (goal 4), the Strategic Plan mentions national authorities (goal 2), the global community (goals 3 and 9), and an enhanced field presence in situation countries (goal 7). The Strategic Plan envisages the OTP as a:

[H]ub for accountability efforts […] working with situation and other countries, accountability mechanisms and other partners to ensure a coordinated and effect effort towards closing the impunity gap.2

This effort to “reimagine” the Office is a nod to the reality that the ICC, as currently funded and conceived, will only be equipped to successfully handle a few cases in each situation, leaving, in most situation countries, a considerable impunity gap. That said, as a Court and not a development agency, the Prosecutor’s bold new vision faces obstacles in terms of funding, State opposition, and geopolitical realities and perceptions.

Due to space constraints, this comment only explores a few key issues. It will focus primarily upon the OTP’s engagement with States in situation and in non-situation countries with respect to investigation and prosecution (but not enforcement of sentences), as well as its relationship with specialized international investigative mechanisms and tribunals. Part I addresses the promise and perils and benefits of cooperation with national authorities. Part II addresses the promise and perils of cooperation with specialized international investigative mechanisms and tribunals. It is not possible in this short comment to address cooperation with regional authorities spanning the situation country or not, including, inter alia, Europol and Eurojust, although it will touch upon the role of the EU and the OTP as regards the proposals for a new tribunal on the crime of aggression for Ukraine.

I conclude that it will be important for the OTP not to take a “one-size fits all” approach in developing modalities for cooperation with national, regional, or other authorities or organizations in investigating and prosecuting international crimes. While keeping the OTP’s door open for cooperation is important, and the Rome Statute contemplates this, there are challenges to implementing the hub system proposed by the Strategic Plan. Indeed, as regards situation countries, cooperation is likely to be more of an exception than a rule, even as regards ICC States Parties.