Argument

I. The ICC’s Ability to Catalyze National Prosecutions

Generally speaking, domestic prosecutions of international crimes fail for two key reasons: lack of political will and lack of capacity.6 The ICC has the ability to assist states in overcoming both of these limitations. The Rome Statute specifically authorizes and envisions the Court to play a role in moving domestic prosecutions forward. Article 93(10)(a) provides:

The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting state.7

The modalities of that assistance, however, will differ with respect to domestic prosecutions undertaken by the territorial state and those that would be based on universal jurisdiction. In both scenarios, however, there is much the ICC can and should do to advance domestic efforts at accountability. There are also limits to what the Court can and should offer states that must inform its efforts.

A. Territorial Prosecutions

Given that it remains the primary international legal duty of territorial states to prevent and punish the most serious crimes in international law and that there are recognized benefits from locating prosecutions as close to the events and victims as possible, the ICC’s priority should be to incentivize the state in which the relevant crimes occurred to prosecute.8 The single most powerful tool available to the ICC to catalyze such territorial prosecutions remains the threat of ICC prosecution. As I argued back in 2005:

[ICC] intervention into otherwise exclusively domestic criminal processes imposes considerable sovereignty costs on national governments that states may seek to avoid by undertaking their own investigations and prosecutions.9

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.

In 2005, it was understandable that many states might be skeptical of whether the ICC would, in fact, open an investigation of events on their territories, much less actually prosecute the perpetrators of such crimes. At the time, the Court’s track record was limited and many of its early high-profile indictees—such as Joseph Kony and Omar al-Bashir—were still at large. Eighteen years later, however, 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. The near certainty of the ICC following through on its commitments to exercise jurisdiction will be sufficient to motivate at least some states to prosecute domestically.

When seeking to catalyze prosecutions by territorial states, the ICC’s leverage vis-à-vis a national government increases the closer the ICC is to undertaking its own prosecution. In some cases, naming a country as part of a situation under investigation may be sufficient. The actual indictment of specific individuals generates even more leverage to encourage domestic judicial action. Apprehension of a suspect subject to potential transfer to the Hague likely generates the most international pressure for a country to investigate and prosecute a particular individual. This phenomenon has proved true in Kosovo (with respect to potential ICTY prosecution) and led to the establishment of the Kosovo Specialist Chambers.10 In the Democratic Republic of the Congo, similar external pressure by the ICC and a subsequent judicial reform led to the prosecution of some military leaders in Congolese courts.11

More recently, the ICC’s long and difficult negotiations with the government of Sudan over the transfer or trial of Omar al-Bashir is indicative of both the influence it may have with national governments and the limits thereof. The closer the ICC came to actually being able to arrest Bashir, the more willing the Sudanese government became to consider domestic prosecution as an alternative. As Sudan’s Justice minister explained in 2000:

[O]ne possibility is that the ICC will come here so they will be appearing before the ICC in Khartoum, or there will be a hybrid court maybe, or maybe they are going to transfer them to The Hague. That will be discussed with the ICC.12

The ICC should use exactly this sort of pressure to nudge territorial states toward domestic prosecutions.

Where, in light of an ICC indictment, a territorial state becomes open to undertaking a genuine domestic investigation, the Office of the Prosecutor (OTP) should use that indictment as leverage both for the arrest of the suspect and transfer to the Hague and for the initiation of a domestic prosecution. Even where the ICC has already issued an indictment or apprehended a suspect, its legal obligation is, and policy goal should be, to prioritize domestic prosecution rather than exercise jurisdiction itself. Ultimately, such a warrant must be understood as a step toward accountability—international or domestic—and not as an indication that a case is now exclusively within the ICC’s jurisdiction. Articles 18 and 19 of the Rome Statute allow admissibility to be challenged throughout procedural phases at the ICC. Where a national government begins its own prosecution, the ICC must defer.

So too, the ICC must be open to the reality that such domestic prosecutions may take different forms and may not follow ICC rules and procedures. In some cases, a territorial state may be willing to establish a semi-internationalized special tribunal; in others they may demand a purely domestic trial based on its own national approaches to justice. For a model of proactive complementarity to be viable, the ICC, as well as the international justice community, will need to become more comfortable with variation in the procedures and processes of accountability.13 That is precisely why the Rome Statute’s admissibility requirements define acceptable domestic prosecutions broadly under the rubric of genuineness.

Political pressure to change a state’s willingness to undertake the prosecution of international crimes is only one piece of the puzzle. In addition, territorial states undertaking such prosecutions may need a range of other assistance, including expertise, evidence, resources, and perhaps even the handover of the accused. Each of these forms of assistance are at least theoretically plausible under Article 93 of the Statute. Nonetheless, the ICC is not, and should not become, a judicial development organization—that is not part of its mandate nor its expertise.14 Hence, the ICC must be judicious in its efforts to support—as opposed to incentivize—national prosecutions.

Expertise is by far the easiest and most appropriate form of support the ICC can offer to territorial states undertaking prosecutions of international crimes. Such expertise can come in many forms ranging from training sessions to the short-term secondment of ICC personnel. Where countries are genuine in their efforts to undertake domestic prosecutions, and willing to learn from the Court’s expertise, the ICC should actively prioritize such efforts and build them into the mission and budget of the OTP. Regular secondments of ICC personnel to countries that are engaged in investigations and prosecutions should become routine.

The ICC’s provision of evidence to a national government elevates the stakes of its involvement in a domestic prosecution and raises potential pitfalls. Any provision of evidence under Article 93 of the Statute should be predicated on concrete steps by the national government that demonstrate its commitment to a genuine prosecution. Such evidentiary support should be based on a written agreement with the government as to how that evidence will be used and protected. Some forms of evidence may be easy to provide to national governments, particularly where they reflect the ICC’s compilation of open-source data and information. In contrast, other forms of evidence—that may implicate victims, reveal witness information, or compromise sources and methods of evidence collection—may simply be inappropriate for handover to national government.15 In such circumstances, the national government may build parts of its case without ICC support.

Generally speaking, the ICC is not a donor organization and should not provide direct transfers of financial resources to national governments. The Court’s own resources are limited and the Assembly of States’ Parties has not made financial transfers a priority within the Court’s budget. Countries seeking to undertake domestic prosecutions of international crimes will need to look to other funding sources, including their own national budgets, bilateral development aid, and philanthropic support to fund their efforts.16 That said, the ICC may be able to encourage such financial support through the signals it sends to the donor community by training national judicial officials, seconding personnel, or reaching an agreement on the provision of evidence.

Perhaps the most important—but also the most potentially problematic—step the ICC could take to support a domestic prosecution would be the transfer of an indictee from the Court to the national jurisdiction. Ultimately, such transfers may be necessary to address the ICC’s current case backlog and are a necessary element of prioritizing domestic prosecutions. But the hand-back of indictees should only occur where a national government has been determined by the Pre-Trial Chamber to satisfy the complementarity requirements under Article 17 of the Statute and the Court has appropriate assurances as to the genuineness and fairness of the national prosecutions that will result. Such a step should not be undertaken lightly, but it must be understood not as a failure of the ICC, but as the successful realization of the goals of the Rome Statute.17

Of course, in any case in which the ICC considers deferring to national prosecutions, and particularly in cases in which it might hand an indictee back to a territorial state, it will need to remain vigilant that prosecutions are in fact genuine. So too, the Court will need to ensure that a minimum level of human rights protections are in place and that a trial is fair. To that end, the OTP should negotiate and memorialize an agreement with a national government prior to the handover of an indictee, ensuring the genuineness of a subsequent prosecution. The resulting trial may not be procedurally identical to an ICC prosecution, but it will still advance the goal of ending impunity while relieving the Court of some of its judicial burden. The time has come to recognize that imperfect justice—at least according to international standards—may be better than justice delayed, as long as basic human rights are respected.

B. Prosecutions Under the Principle of Universal Jurisdiction

The ICC may also have a role to play in assisting national courts undertaking prosecution of international crimes under the principle of universal jurisdiction. While universal jurisdiction has existed with respect to international crimes for centuries, there appears to be a growing willingness among at least some national governments to undertake such prosecutions.18 Universal jurisdiction prosecutions must be understood as an integral part of the overall Rome system of justice and an important piece of the broader effort to end impunity. While the ICC can not and should not be expected to coordinate a mosaic of domestic courts prosecuting international crimes, it can incentivize and support such prosecutions.19 It could also serve as an information and expertise hub in a decentralized system of domestic justice for international crimes.20

The logic behind the ICC’s ability to catalyze non-territorial states to prosecute international crimes under universal jurisdiction differs from the ways it can influence territorial states to prosecute crimes domestically. Third states exercising universal jurisdiction do not fear the sovereignty costs of international intervention. In fact, the threat of ICC prosecution might actually give third states reason not to prosecute themselves. After all, the prosecution of international crimes is often expensive and may divert resources from a country’s domestic justice system. Third states might well prefer to defer to the ICC if it is willing to prosecute. Hence, when working with states considering exercising universal jurisdiction, the ICC must emphasize not the threat of ICC prosecution, but rather its own limited capacity, the dangers of impunity, and the need for action by national governments.

Most states considering the exercise of universal jurisdiction are committed to the broader goal of ending impunity. Some may have a historical or other ties to the perpetrator or territorial state where the crime occurred, giving them particular incentive to ensure justice is realized.21 Rather than sending such states a signal that the ICC will undertake prosecutions itself, the Court should make clear to third states that its own capacity is limited, that it remains the primary obligation of national governments to end impunity, and that if a prosecution is not undertaken based on universal jurisdiction, the perpetrator may well avoid accountability. Appropriately calibrated diplomatic messaging can and should be part of the work of the OTP, encouraging universal jurisdiction prosecutions whenever possible.

Beyond political pressure and diplomatic messaging, the ICC may also be able to provide evidentiary and technical assistance to national governments exercising universal jurisdiction. The same broad objectives and considerations discussed above with respect to territorial prosecutions will apply in this context as well. The Court can and should provide technical assistance and expertise when needed. It may consider evidence sharing, if appropriate safeguards are in place. Finally, in appropriate circumstances and with written assurances about the terms and procedures of a universal jurisdiction prosecution, it may consider handing over already apprehended suspects for domestic prosecution. It should not, however, finance domestic prosecutions—whether territorial or based on universal jurisdiction.

The Court’s involvement in cases brought under universal jurisdiction may present fewer concerns than its support for territorial states undertaking domestic prosecutions. Generally speaking, the interests and objectives of countries exercising universal jurisdiction will be more clear-cut and hopefully aligned with the goals of the Rome Statute. Such countries are also likely to have more developed domestic judiciaries and require less assistance from ICC. The sharing of evidence may be facilitated by the existence of adequate legal protection of both evidence and witnesses under the requesting state’s domestic judicial system. Where the ICC is able to share evidence, it may reduce the burdens on the prosecuting state, perhaps allowing that state to prosecute where it would not have had the resources to do so without ICC support.

Nonetheless, the ICC must remain vigilant when cooperating even with states exercising universal jurisdiction. There may well be states seeking to exercise universal jurisdiction that have mixed motives for prosecuting, or other states that seek to exercise universal jurisdiction, but lack adequate domestic legal frameworks to protect evidence or the rights of victims or the accused. In such circumstances, the ICC should play a more limited role (perhaps offering trainings and expertise) or no role at all. The Court may wish to remind states diplomatically that, where a case under universal jurisdiction fails to meet the tests of genuineness, the ICC may decide to act on its own.

Beyond active support for domestic prosecutions under universal jurisdiction, the ICC can easily position itself as a hub in a broader system of justice for the most serious international crimes. At the very least, the ICC can serve as a repository of information on the prosecution of crimes within its jurisdiction undertaken by states based on universal jurisdiction. Cataloguing and sharing such information would allow the Court to show the broader movement toward ending impunity and perhaps highlight for governments the potential of universal jurisdiction to contribute to those efforts.

II. The Limits of Positive Complementarity

This comment has focused on how the ICC can do more to catalyze domestic prosecutions of international crimes, either by territorial states or by states exercising universal jurisdiction. While the time is right for the Court to make such efforts a central part of its mission and, thereby, relieve some of its caseload, there are limits both to what the Court can do to incentivize such prosecutions and what it is appropriate for national governments to do in undertaking such prosecutions. Those limitations on domestic justice is precisely why the ICC was established in the first place: to prosecute the most serious crimes when national governments are unable or unwilling to do so. There are a variety of circumstances in which the Court should not pursue a strategy of proactive complementarity.

A. Where Domestic Prosecutorial Efforts Lack Genuineness

Any efforts to catalyze domestic prosecutions of international crimes must be predicated on the willingness of states to undertake genuine prosecutions. The genuineness requirement is enshrined in Article 17 of the Rome Statute and is essential for ensuring rights, justice, and accountability. As outlined in this comment, the ICC can and should push states toward meeting those requirements. Initially, the Court may need to accept the good faith of such governments, until their actions call such good faith into question.22 Where genuineness is in doubt, the Court may be advised to take only small steps to assist states with domestic prosecutions, while carefully monitoring the actions and motivations of the national government interested in prosecuting the case. When and if it becomes clear that a government does not intend to undertake a genuine prosecution, the ICC must cease its efforts to catalyze that government forward. In such cases, the Court may decide to prosecute itself, may seek to encourage third states to act under universal jurisdiction, or may simply have to recognize that, given resource limitations, accountability may not be presently feasible.

B. Where Crimes Fall Outside the ICC’s Jurisdiction or Gravity Thresholds Are Not Met

The ICC must remain focused on the most serious crimes that fall within its jurisdiction. There are a range of crimes subject to universal jurisdiction, but that are not within the Court’s jurisdiction. Some crimes (such as piracy) may be subject to universal jurisdiction, but not included expressly in the Rome Statute. Similarly, national governments may seek assistance with the prosecution of crimes that do not meet the nationality or territoriality requirements for ICC prosecution. The ICC should not actively assist such prosecutions given its limited mandate and resources.

Even with respect to crimes within the Court’s jurisdiction (such as Crimes Against Humanity), there may be circumstances in which national governments prosecute crimes under universal jurisdiction that do not meet the ICC’s gravity thresholds.23 While such prosecutions should be lauded as part of the broader effort of ending impunity, the ICC should not prioritize assisting national governments with such prosecutions. Again, the ICC is not a judicial development or capacity-building mechanism.24 Of course, the ICC’s assistance to states exercising universal jurisdiction over crimes within the Court’s jurisdiction, and that satisfy its gravity threshold, may have knock-on effects of enhancing that country’s domestic justice capability. Such side effects should be viewed positively, but not prioritized.

C. Where Crimes Involve the Prosecution of Sitting Government Officials With Immunity Before Domestic Courts

The drafters of the Rome Statute recognized the need to hold even sitting senior government officials accountable for international crimes. To that end, they gave the Court the power to prosecute such officials even while they remain in office by providing that official capacity would be irrelevant before the ICC.25 In contrast, national courts can not prosecute senior sitting government officials under universal jurisdiction.26 The ICC should not endeavor to support such prosecutions domestically, but instead should seek to exercise jurisdiction itself.

D. Where a Prosecution Has High Symbolic Value or Poses Systemic Risks

Some cases present unique political challenges for the prosecuting state or the international community as a whole. While all prosecutions of international crimes are complex, and most are politically charged in the state in which the crimes occurred, certain cases may pose a greater degree of political risk. The 2023 indictment of sitting Russian president Vladimir Putin is a prime example. As President of Russia, Putin is, of course, immune from prosecution in the domestic courts of any third state. However, if he were to leave office—or be forced out of office—a domestic prosecution could be plausible. The ICC should not attempt to catalyze or support such a prosecution. The prosecution of Putin in Ukraine or in any G7 member country would run the risk of being seen as victor’s justice or it could exacerbate or rekindle military conflict. Similarly, in some post conflict states, a domestic prosecution might destabilize a fragile peace agreement or prompt a new wave of violence and retribution.27 Once again, these are circumstances in which the ICC should undertake its own prosecutorial efforts rather than encourage domestic prosecutions.

III. Conclusion

The ICC has made great progress in the past twenty-three years. But, its success also highlights its limitations. The Court presently has before it more cases and suspects than it can reasonably handle. Unfortunately, events the world over continue to expand its docket. The solution to the ICC’s capacity challenge is actually found in its Statute—that the Court can and should encourage and support the domestic prosecutions of international crimes. By catalyzing and, at times, supporting national prosecutions both by territorial states and by sates acting under universal jurisdiction, the ICC can maximize its ability to end impunity while slimming its own caseload. Caution must be exercised in the process and new techniques and tools will need to be developed by the Court. Ultimately, more active efforts to catalyze domestic prosecutions may contribute to ending impunity more broadly than just through its own prosecutions.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

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

2. 2.

   William W. Burke-White, The Domestic Influence of International Criminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia & Herzegovina, 46 Colum. J. Transnat’l L. 279 (2008), available online; William W. Burke-White, Complementarity in Practice: the International Criminal Court as Part of a System of Multi-Level Global Governance in the Democratic Republic of Congo, 18 Leiden J. Int’l L. 557 (Oct. 2005), paywall, doi. ↩

3. 3.

   Defendants, ICC, available online (last visited Aug. 27, 2023). ↩

4. 4.

   Elizabeth Evenson & Jonathan O’Donohue, The International Criminal Court at Risk, Open Democracy (May 6, 2015), available online. ↩

5. 5.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, available online. ↩

6. 6.

   Id. Art. 17. ↩

7. 7.

   Id. Art. 93(10)(a). ↩

8. 8.

   Id. Preamble; G.A. Res. 60/1, U.N. Doc. A/Res/60/1, 2005 World Summit Outcome, ¶ 138 (Sep. 16, 2005), available online; Carsten Stahn, The Future of International Criminal Justice, 4 HJJ 257 (2009), available online. ↩

9. 9.

   Burke-White, supra note 1. ↩

10. 10.

    Sarah Williams, The Specialist Chambers of Kosovo: The Limits of Internationalization, 14 J. Int’l Crim. Just. 25 (Mar. 15, 2016), paywall, doi. ↩

11. 11.

    Human Rights Watch, Accountability for Atrocities Committed in the Democratic Republic of Congo: Supporting the Governments Proposal to Establish Specialized Mixed Chambers and Other Related Judicial Reforms (Apr. 1, 2014), available online. ↩

12. 12.

    Mark Kersten, The ICC Inches Closer to Bashir as Sudan and Israel Normalize Relations, Just. in Conflict (Oct. 28, 2020), available online; Omar Bashir: ICC Delegation Begins Talks in Sudan Over Former Leader, BBC News, Oct. 17, 2020, available online. ↩

13. 13.

    Alexander K. A. Greenawalt, The Pluralism of International Criminal Law, 86 Ind. L.J. 1063 (Jul. 2011), available online; Jean Galbraith, The Pace of International Criminal Justice, 31 Mich. J. Int’l L. 79 (Nov. 2009), available online. ↩

14. 14.

    Jane E. Stromseth, Justice on the Ground: Can International Criminal Courts Strengthen Domestic Rule of Law in Post-Conflict Societies?, 1 HJRL 87–97 (2009), available online, doi; Morten Bergsmo, Olympia Bekou & Annika Jones, Complementarity After Kampala: Capacity Building and the ICC’s Legal Tools, 2 GoJIL 791 (2010), available online, doi. ↩

15. 15.

    Markus Eikel, Witness Protection Measures at the International Criminal Court: Legal Framework and Emerging Practice, 23 Crim. L. Forum 97 (Jul. 25, 2012), available online, doi. ↩

16. 16.

    Open Society Justice Initiative, Towards a New Consensus on Access to Justice: Summary of Brussels Workshop (2008), available online. ↩

17. 17.

    Rome Statute, supra note 5, Preamble. ↩

18. 18.

    Trial International, Universal Jurisdiction Annual Review 2020 (Mar. 18, 2020), available online. ↩

19. 19.

    Louise Arbour, Will the ICC have an Impact on Universal Jurisdiction?, 1 J. Int’l Crim. Just. 585 (Dec. 1, 2003), paywall, doi. ↩

20. 20.

    William W. Burke-White, A Community of Courts: Toward a System of International Criminal Law Enforcement, 24 Mich. J. Int’l L. 1 (2002), available online. ↩

21. 21.

    Jeremy A. Rabkin & Craig S. Lerner, Criminal Justice is Local: Why States Disregard Universal Jurisdiction for Human Rights Abuses, 55 Vand. J. Transnat’l L. 375 (Jun. 2022), available online. ↩

22. 22.

    Vienna Convention on the Law of Treaties, art. 26, May 23, 1969, 1155 U.N.T.S. 331, available online, archived. ↩

23. 23.

    Rome Statute, supra note 5, Article 17(1)(d); Stuart Ford, The Meaning of Gravity at the International Criminal Court: A Survey of Attitudes About the Seriousness of Mass Atrocities, 24 U.C. Davis J. Int’l L. & Pol’y 209 (2018), available online. ↩

24. 24.

    Rome Statute, supra note 5, Preamble. ↩

25. 25.

    Id. Art. 17. ↩

26. 26.

    Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 2002 I.C.J. Rep. 3 (Feb. 14, 2002), available online, archived; ↩

27. 27.

    Cyanne E. Loyle & Benjamin J. Appel, Conflict Recurrence and Post Conflict Justice: Addressing Motivations and Opportunities for Sustainable Peace, 61 Int’l Stud. Q. 690 (Sep. 2017), available online, doi. ↩

28. Suggested Citation for this Comment:

    William W. Burke-White, Proactive Complementarity (Revisited), ICC Forum (Sep. 13, 2023), available at https://iccforum.com/decentralized-accountability#Burke-White.

    Suggested Citation for this Issue Generally:

    How Should the ICC Support Decentralized Accountability for Those Accused of Grave Crimes?, ICC Forum (Sep. 13, 2023), available at https://iccforum.com/decentralized-accountability.

Argument

I. Colombia Safeguards

The seventeen-year-long ICC preliminary examination of crimes against humanity (and later war crimes) may be the leading example of the value of “positive” complementarity.11 The ICC is designed to prosecute Rome Statute crimes only where the national State is unwilling or unable to do so.12 In the case of Colombia, rather than take a “negative” complementarity posture and advocate an ICC prosecution because of Colombian prosecutorial shortfalls, the ICC prosecutors sought to use a potential prosecution in The Hague to incentivize Colombia to prosecute in its own courts.

That made good sense. 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.

Of course, all things are not equal. National prosecutors and courts may be less prone to pursue local potentates. They may be more vulnerable to corruption. They may be less likely to apply international substantive standards on matters such as command responsibility, on which local variants, subjected to local legislative pressures, may make it more difficult to secure convictions.

None of this should make an ICC trial the default position. There are advantages and disadvantages of trials in The Hague. The task of positive complementarity should be to encourage the national State not merely to prosecute, but to conduct a serious criminal investigation in a genuine effort to pursue justice through a fair trial meeting international norms of due process.

If the ICC prosecutor were to set the bar for acceptable national prosecutions too high, more cases than the ICC could realistically and properly investigate and adjudicate would be sent to The Hague. If the bar were set too low, too many cases would be left to national trials destined to end in impunity, thereby frustrating justice for “the most serious crimes of concern to the international community as a whole.”13

Positive complementarity, then, must strike a balance. It should be neither too demanding nor too lenient. It demands what the ICC prosecutor calls the “twin principles of partnership and vigilance” to guide the prosecutor’s interactions with a State with respect to complementarity.14 Achieving that balance calls for the exercise of informed judgment. In arguable situations, reasonable observers may differ on whether an appropriate balance has been struck.

In Colombia, critics can—and do—argue that the balance struck by the ICC was skewed against justice, one way or the other. On the left (and elsewhere), critics argue that the ICC allowed far too much time before Colombian prosecutions of high-ranking military officers and that, even now, too few have been prosecuted. On the right (and elsewhere), critics decry that punishments for guerrilla leaders who committed horrendous crimes are too lenient.

Each observer can make her or his own call. Whatever call is made for the Colombian situation, one point strikes me as indisputable: far fewer investigations and prosecutions of serious crimes in Colombia would have been conducted without the constant possibility, reinforced by periodic public and private warnings, that if Colombia utterly defaulted on justice, the ICC prosecutor would step in and bring to The Hague cases that matter greatly to Colombia.

I experienced this impact of positive complementarity reality firsthand, while serving as one of Colombian President Juan Manuel Santos’ advisers and negotiators on transitional justice with FARC guerrilla leaders in 2015 and 2016. As I later recounted:

[The ICC] helped us in negotiating an agreement on transitional justice […] I believe that not a single negotiating session of our juridical subcommittee went by without mention and consideration of the impact of the ICC on whatever we might agree to.15

In addition, I wrote:

[T]hroughout the peace negotiations in Colombia, as well as before and after, the ICC prosecutor or her office issued declarations and public reports, and held meetings with Colombian officials, at times during visits to the country, expressing concern about the necessity of justice for certain war crimes and crimes against humanity in Colombia, without ever closing the door either to national justice or to international justice.

For us, the government negotiators in the juridical subcommittee, this posture of the ICC permitted us to insist with the FARC-EP on a degree of justice, without depriving us of the flexibility to negotiate creative means of transitional justice. Even the lawyers of the FARC-EP in the juridical subcommittee accepted the realities of the jurisprudence of the Inter-American Court of Human Rights and of the possible intervention of the ICC. These realities conditioned all our negotiations on transitional justice.16

Furthermore, in my role assessing the international legitimacy of the transitional justice accords, I wrote a letter dated September 25, 2015:

[A]t the request of President Santos, for him to take to the United Nations in New York and show to whomever he pleased. The letter detailed my judgment that the document on transitional justice drafted by the subcommittee satisfied the norms of international law [including the public statements of the ICC prosecutor].

Second, in late September [2015], Manuel José [Cepeda] and I traveled to The Hague to meet with the office of the ICC prosecutor. […] We explained why the concept of the JEP [Special Jurisdiction for Peace] was consistent with international law and the Rome Statute [of the ICC]. I believe the meeting was successful. After hearing our argument, they had an open mind on the JEP, pending the final agreement.17

The transitional justice accords were only one aspect of Colombian justice that benefited from the supporting stimulus of the ICC preliminary examination. Also included in the mix evaluated by the ICC were Colombia’s ordinary courts and its Justice and Peace Law Tribunals for paramilitary crimes.18

By June 2021, ICC prosecutor Fatou Bensouda was sufficiently satisfied that Colombia justice appeared to meet the bar of complementarity that she convened a “Benchmarking Consultation” to solicit the views of civil society and other stakeholders on the role of an ICC preliminary examination that faces a “long-term, multi-layered domestic accountability processes where national proceedings were likely to extend over a considerable period of time.”19

The prosecutor commented on both the benchmarks and the indicators of progress against the benchmarks. She explained that the “benchmarks must be concrete, measureable and realistic. Similarly, indicators should also be simple to understand and apply, timely and few in number, reliable, based on transparent and verifiable methodology, and conform with relevant international standards.”20

Applying these criteria to an assessment of whether to continue the preliminary examination, the prosecutor identified three indicators on which to focus:21

• “ Structural indicators: focussing on the nature of domestic law in relation to criminal accountability for conduct constituting Rome Statute crimes, whether it incorporates the required international standards, as well as the institutional mechanisms competent to investigate, prosecute and adjudicate those crimes.”

• “ Process indicators: measuring ongoing efforts by competent institutional mechanisms to promote and protect accountability for these crimes, including policies, budgetary resources and measures taken to ensure implementation.”

• “ Outcome indicators: capturing specific individual and collective accountability outcomes in specific proceedings.”

Following the consultation, and applying these benchmarks, the new ICC prosecutor Karim Khan QC decided to close the preliminary examination of crimes against humanity and war crimes in Colombia, by means of a “Cooperation Agreement” with the Government of Colombia.22 However, the closure was subject to the following safeguards:

• High level agreement: The Agreement was countersigned by Colombian President Iván Duque.23

• Stakeholder consultation: The closure was decided on only after an open, wide-ranging stakeholder consultation.24

• Long observation: The ICC prosecutors had observed the reality of Colombian justice in practice for years.25

• Genuine commitment: The ICC prosecutor concluded that Colombia had demonstrated the ability and a willingness to pursue genuine justice.26

• Relevant proceedings: Without prejudice to the separation of powers, the Government committed to continue supporting relevant proceedings before ordinary justice, the Special Tribunal for Peace, and the Justice and Peace Law mechanism.27

• Closure without prejudice: The preliminary examination could be reopened if there is a significant change in circumstances.28

• Indefinite duration: There was no “sunset clause” in the Agreement.29

• Structural stability: The constitutional and legal status and structure for justice on which the ICC prosecutor relies shall be preserved.30

• Budgetary adequacy: Colombia will continue to allocate sufficient budget for justice.31

• Information: The Government will keep the ICC informed on a regular basis.32

• Communication: Lines of communication between the ICC and the Government will be maintained and strengthened.33

• Annual visits and exchange: ICC prosecutors will visit Colombia and Colombian officials will visit The Hague.34

• Access to records: ICC prosecutors will have access to relevant justice records.35

• Mutual learning: Both parties will take into account lessons learned and observations of best practices.36

• Training: The ICC will inform Colombian legal professionals of the latest developments and jurisprudence of the ICC.37

• Punishments: Punishments must be effective and proportional, and both retributive and restorative.38

• Cooperation: Among relevant State entities, cooperation must be maintained, particularly between the Attorney General and the Special Tribunal for Peace.39

• Interference with Justice: Such interference must be prevented.40

• Safety and security: Must be provided for judicial and prosecutorial personnel and participants in the proceedings.41

• ICC prosecutor: Will continue supporting justice in Colombia.42

The foregoing provisions provide a good template for the ICC to support national justice in prosecuting Rome Statute crimes generally. However, they would not be sufficient or appropriate in all cases. Unless the State involved, like Colombia at present in the ICC prosecutor’s estimation, has the “intent to bring the person concerned to justice,”43 no accumulation of regular visits, informational exchanges and access to records will succeed in avoiding impunity. The safeguards listed above will be of practical value only when a State is “genuinely” willing to prosecute,44 but not when it has a “purpose of shielding the person concerned from criminal responsibility.”45

To ascertain a State’s subjective “intent” is, of course, difficult at best. Hence the ICC prosecutor is wise to look to the objective indicators enumerated above—structures, processes and outcomes—in order to decide whether to defer to national prosecutions.

II. Safeguards in Cases of Universal Jurisdiction

The safeguards agreed to between the ICC prosecutor and Colombia were designed for cases of alleged war crimes and crimes against humanity committed by Colombians, against Colombians, in Colombia. But what if Colombia were to exercise jurisdiction over a foreign citizen for alleged war crimes committed in foreign territory against foreign citizens, with no connection between the crime and Colombia—i.e., universal jurisdiction?

Imagine, for example, that Yevgeny Prigozhin, head of the Wagner Group fighters accused of atrocities in Ukraine,46 were to take a flight to Russian ally Venezuela, only to have his plane encounter engine trouble and be diverted to land in neighboring Colombia.

Suppose Colombia invoked universal jurisdiction and took it upon itself to prosecute Prigozhin in Bogota rather than turn him over to The Hague. Would the ICC prosecutor need to implement additional safeguards, beyond those currently in effect in Colombia, in order to acquiesce in an exercise of universal jurisdiction by Colombian courts?

The answer given two decades ago by three judges of the International Court of Justice is arguably “yes.” In the case of an arrest warrant issued by Belgium for the former foreign minister of the Democratic Republic of the Congo, the judges considered the “question whether States are entitled to exercise jurisdiction over persons having no connection with the forum State when the accused is not present in the State’s territory.”47

They answered that a State could indeed exercise universal jurisdiction—provided that “certain safeguards are in place” which are “absolutely essential to prevent abuse” and to safeguard “stable relations between States.”48 Those safeguards are as follows:

1. Immunities: The prosecution must respect the inviolability and immunities of the person concerned.49

2. National State: A State contemplating bringing criminal charges based on universal jurisdiction must first offer to the national State of the prospective accused person the opportunity itself to act upon the charges concerned.50

3. Prosecutorial independence: Further, such charges may only be laid by a prosecutor or juge d’instruction who acts in full independence, without links to or control by the government of that State.51

4. Special Circumstances: Moreover, there must be “some special circumstances that do require the exercise of an international criminal jurisdiction” that have been brought to the attention of the prosecutor or juge d’instruction. “For example, persons related to the victims of the case will have requested the commencement of legal proceedings,”52 and

5. Heinous crimes: Universal criminal jurisdiction may be exercised “only over those crimes regarded as the most heinous by the international community.”53

Granted, these safeguards apply to the exercise of universal jurisdiction where the alleged perpetrator is not present in the prosecuting State. However, that need not render them inapplicable to the case where he is present. His presence could simply be regarded as a “special circumstance” under safeguard 4.

Applying these five safeguards, then, to our hypothetical, Mr. Prigozhin has no official immunity from prosecution. He is a private businessman. Under the first safeguard, Colombia could prosecute him. In contrast, if the unfortunately diverted traveler were not Prigozhin, but Russian President Vladimir Putin, Colombia probably could not prosecute him because he enjoys official immunity while in office.54

In contrast, the ICC would not have to respect Putin’s immunity.55 It could prosecute him. Complementarity could thus play a role in prosecuting Prigozhin, but not Putin (as long as he remains in office). In the case of a private citizen, the ICC prosecutor could allow Colombia to prosecute (assuming the other safeguards are met), whereas in the case of an official with immunity, the prosecution probably could be conducted only in The Hague (or, theoretically, in Russia).

Under the second safeguard, Colombia would be required to offer Russia the opportunity to prosecute Prigozhin. But would a Russian proposal to prosecute Prigozhin—an alleged crony of Putin—be credible? Unless a situation very different from current realities were to arise, making a Russian prosecution of Prigozhin credible, the ICC prosecutor should insist that Colombia not send Prigozhin to Moscow. Assuming the other safeguards were met, Prigozhin could be prosecuted in Colombia. Or if not, then in The Hague. Sending him back to Russia would, in effect, be to shield him from justice.

The third safeguard, prosecutorial independence from the government, should arguably apply regardless of whether Colombian prosecutes its own nationals or a foreigner like Prigozhin.56

The fourth safeguard—“special circumstances”—should give the ICC prosecutor pause in accepting a Colombian prosecution under universal jurisdiction. If the accused is present in Colombia, as in our Prigozhin hypothetical, his presence should be a special circumstance sufficient to justify Colombia in exercising jurisdiction.57 But if Prigozhin is not in Colombia—suppose his plane managed to land safely in Venezuela—some other special circumstance would be required in order to justify a Colombian exercise of universal jurisdiction over him. Absent that, the ICC prosecutor should not defer to Colombia to prosecute. Instead, the prosecutor should demand that Venezuela, as a State Party to the ICC, send Prigozhin to The Hague (unless Venezuela somehow makes a credible case that it would prosecute Prigozhin genuinely and fairly).

The fifth and final safeguard—a heinous offense—would probably allow the ICC prosecutor the same options in a universal jurisdiction case as in a usual case. The ICC prosecutor could defer to a Colombian prosecution if it is genuine and fair and comports with the other safeguards. If not, the prosecutor could ask Colombia to send the suspect to The Hague. If Colombia were to refuse, the ICC prosecutor could ask the ICC judges to issue an arrest warrant. Colombia, as a State Party to the ICC, would then be legally obligated to honor the warrant.

The five safeguards proposed twenty years ago in dicta by the three judges of the ICJ are not binding international law. Nonetheless, they are entitled to respectful consideration. Their authors were not only ICJ judges, but also respected scholars of international law. Therefore, in evaluating complementarity in a case of universal jurisdiction, whether pure or hybrid, the ICC prosecutor would be well-advised to consider, in addition to the safeguards he agreed with Colombia in 2021, at least four of the five additional safeguards suggested by the three ICJ judges. (The fifth, prosecutorial independence from politics, should be applied regardless of whether a prosecution is against a State’s own national or against foreign citizens.)

Conclusion

Navigating the legal, practical, and policy issues of what safeguards the ICC prosecutor should adopt in evaluating complementarity is neither simple nor scientific. Professional judgment is required. Whatever choice the prosecutor makes in debatable cases may well be challenged in good faith by reasonable observers. With this in mind, instead of deciding on a purely ad hoc basis in individual cases, the prosecutor would be well-served by general guidelines which channel (but do not dictate) results. Such guidelines should help preserve the legitimacy, reputation, and effectiveness of the ICC.

Supplementing the ICC prosecutor’s 2013 Policy Paper on Preliminary Examinations,58 the safeguards agreed to by the ICC prosecutor in Colombia are the best that experience to date has produced. In cases of universal jurisdiction, they should be augmented by the safeguards suggested by the three ICJ judges in Congo v. Belgium.

There are few more important questions in international criminal law than the threshold issues of who prosecutes and why. Ideally the ICC should be more of a stimulus than a substitute for national prosecutions.59 For this to become a defensible reality, the ICC should not simply observe national proceedings passively. Where plausible, as in Colombia, the ICC should attempt positive and energetic complementarity, always bearing in mind the “twin principles of partnership and vigilance.”60 Only where national justice is implausible or, at least, quite dubious—a debatable judgment call in many situations—is the ICC left with no alternative but to face the difficult challenge of attempting to fill the justice gap for “the most serious crimes of concern to the international community as a whole.”61

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 15(6), available online. ↩

2. 2.

   See Preliminary Examination: Colombia, ICC, available online (last visited Aug. 21, 2023). ↩

3. 3.

   Rome Statute, supra note 1, Art. 124. ↩

4. 4.

   Cooperation Agreement Between the Office of the Prosecutor of the International Criminal Court and the Government of Colombia (Oct. 28, 2021) [hereinafter Cooperation Agreement], available online. ↩

5. 5.

   Office of the Prosecutor, ICC, Situation in Colombia: Benchmarking Consultation ¶ 10 (Jun. 15, 2021) [hereinafter Benchmarking Consultation], available online. ↩

6. 6.

   Cooperation Agreement, supra note 4, Preamble. ↩

7. 7.

   Office of the Prosecutor, ICC, Policy Paper on Preliminary Examinations (Nov. 2013), [hereinafter Preliminary Examinations Policy], available online. ↩

8. 8.

   Id. ¶¶ 46–55. ↩

9. 9.

   See Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, 2002 I.C.J. Rep. 3 (Feb. 14, 2002), [hereinafter Arrest Warrant Majority Opinion], available online, archived; see Joint Separate Opinion by Judges Higgins, Kooijmans and Buergenthal, 2002 I.C.J. Rep., ¶ 41 (Feb. 14, 2002), [hereinafter Arrest Warrant Separate Opinion], available online. ↩

10. 10.

    Arrest Warrant Separate Opinion, supra note 9, ¶¶ 59–60. ↩

11. 11.

    See Office of the Prosecutor, ICC, Report on Prosecutorial Strategy 5 (Sep. 14, 2006), [hereinafter Prosecutorial Strategy], available online.

    (“A Court based on the principle of complementarity ensures the international rule of law by creating an interdependent, mutually reinforcing international system of justice. With this in mind, the Office has adopted a positive approach to complementarity, meaning that it encourages genuine national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation.”). ↩

12. 12.

    Rome Statute, supra note 1, Art. 17. ↩

13. 13.

    Id. Art. 1. ↩

14. 14.

    Benchmarking Consultation, supra note 5, ¶ 9. ↩

15. 15.

    Douglass Cassel, Buscando La Paz Con La Mayor Justicia Posible: Un Recuerdo Personal De La Negociación De La JEP, in La JEP Vista Por Sus Jueces 377 (Danilo Rojas Betancourth ed., Jul. 2021), (span., trans. by author), available online. ↩

16. 16.

    Id. at 386. ↩

17. 17.

    Id. at 391. ↩

18. 18.

    Press Release, ICC, ICC Prosecutor, Mr Karim A. A. Khan QC, Concludes the Preliminary Examination of the Situation in Colombia With a Cooperation Agreement With the Government Charting the Next Stage in Support of Domestic Efforts to Advance Transitional Justice (Oct. 28, 2021), available online. ↩

19. 19.

    Preliminary Examination: Columbia, supra note 2. ↩

20. 20.

    Benchmarking Consultation, supra note 5, ¶ 36. ↩

21. 21.

    Id. ¶ 35. ↩

22. 22.

    Cooperation Agreement, supra note 4. ↩

23. 23.

    Id. ↩

24. 24.

    Id. at Preamble. ↩

25. 25.

    Id. ↩

26. 26.

    Id. ↩

27. 27.

    Id. Art. 1. ↩

28. 28.

    Id. Art. 6. ↩

29. 29.

    Id. Art. 7. ↩

30. 30.

    Id. Art. 1. ↩

31. 31.

    Id. ↩

32. 32.

    Id. Art. 2. ↩

33. 33.

    Id. Art. 6. ↩

34. 34.

    Id. Art. 4. ↩

35. 35.

    Id. Art. 2. ↩

36. 36.

    Id. Art. 4. ↩

37. 37.

    Id. Art. 5. ↩

38. 38.

    Id. Art. 1. ↩

39. 39.

    Id. ↩

40. 40.

    Id. ↩

41. 41.

    Id. ↩

42. 42.

    Id. Art. 3. ↩

43. 43.

    Rome Statute, supra note 1, Art. 17(2)(c). ↩

44. 44.

    Id. Art. 17(1)(a). ↩

45. 45.

    Id. Art. 17(2)(a). ↩

46. 46.

    E.g., Louise Nordstrom, Wagner Group’s Bloody Year in Ukraine: From Murder Squad to Cannon Fodder, France 24, Feb. 22, 2023, available online. ↩

47. 47.

    See Arrest Warrant Separate Opinion, supra note 9, ¶ 19.

    (The majority of the Court, holding that the former foreign minister was immune from prosecution in Belgium, did not reach the issues of universal jurisdiction). ↩

48. 48.

    Arrest Warrant Separate Opinion, supra note 47, ¶ 59. ↩

49. 49.

    Id. ↩

50. 50.

    Id. ↩

51. 51.

    Id. ↩

52. 52.

    Id. ↩

53. 53.

    Id. ¶ 60. ↩

54. 54.

    Arrest Warrant Majority Opinion, supra note 47, ¶ 61. ↩

55. 55.

    Rome Statute, supra note 1, Art. 27(2) ↩

56. 56.

    E.g., Casa Nina v. Peru, Judgment ¶ 72 (Inter-Am. Ct. H.R., Nov. 24, 2020), available online. ↩

57. 57.

    Cf. Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, 2012 I.C.J. Rep. 422 ¶ 94 (ICJ, Jul. 20, 2012), available online. ↩

58. 58.

    Preliminary Examinations Policy, supra note 7. ↩

59. 59.

    See Prosecutorial Strategy, supra note 11.

    (The ICC prosecutor agrees). ↩

60. 60.

    Benchmarking Consultation, supra note 5, ¶ 9. ↩

61. 61.

    Rome Statute, supra note 1, Art. 1. ↩

62. Suggested Citation for this Comment:

    Douglass Cassel, Safeguards for ICC Complementarity: Challenging in the Best of Circumstances, ICC Forum (Sep. 13, 2023), available at https://iccforum.com/decentralized-accountability#Cassel.

    Suggested Citation for this Issue Generally:

    How Should the ICC Support Decentralized Accountability for Those Accused of Grave Crimes?, ICC Forum (Sep. 13, 2023), available at https://iccforum.com/decentralized-accountability.

Argument

I. Burden Sharing

To determine how the OTP should engage with other accountability mechanisms, such as regional courts or national courts exercising universal jurisdiction, it is important to establish the ICC’s relationship to those institutions. The ICC might be considered a hierarchically superior forum for adjudicating international crimes in the sense that adjudication by the ICC has greater value than adjudication by other institutions. On this account, the ICC should focus its resources on bringing its own cases, rather than on providing assistance or support to other institutions. However, this view of ICC authority is largely confined to the past.6

Alternatively, the ICC might be considered hierarchically inferior to other institutions, as suggested by the oft-invoked trope that the ICC is a “court of last resort.”7 This was a frequent mantra at the Rome Conference where the ICC was established.8 It helped motivate the Rome Statute’s complementarity regime whereby the Court must deem “inadmissible” any case that is being genuinely investigated or prosecuted by a State with jurisdiction.9 This vision of the ICC’s mandate suggests that national courts—at least those with traditional forms of jurisdiction—are superior adjudicative fora compared to the ICC.

The idea that national courts with traditional forms of jurisdiction are superior fora derives from their greater proximity to the crimes, defendants, and affected communities. A similar argument can be made regarding regional courts, which can be considered one step removed from the most affected communities, whereas the ICC is two steps removed. According to such hierarchical thinking, the priority of national courts exercising universal jurisdiction would depend on their proximity to the most affected communities. For instance, national courts exercising universal jurisdiction in the same region as the most affected states might be given priority over ICC adjudication. This view would suggest that in addition to assisting national courts in the most affected States, the OTP should prioritize assistance to any regional adjudicative efforts as well as universal jurisdiction cases sufficiently proximate to the most affected communities.

The OTP should reject such hierarchical thinking about the ICC’s relationships with other courts, however. Instead, it 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. As I have elaborated elsewhere, although the global community is a “thin” community, it has distinct values and goals that the ICC, and courts exercising universal jurisdiction, may legitimately pursue.10 Regional courts, such as the proposed African Criminal Court,11 represent regional communities with their own sets of values and goals.12 Although much of international law is based on State consent, suggesting the superior value of national interests compared to regional and global interests, international criminal law is a cosmopolitan project that views individuals as the ultimate units of interest.13 As such, the various communities to which individuals belong each have legitimate claims to the pursuit of their own goals.

The ICC has largely adopted a burden sharing approach to its complementarity with national courts exercising traditional forms of jurisdiction. The Court has found cases inadmissible only when a State with jurisdiction is actively investigating or prosecuting the same person and substantially the same conduct as the case before the ICC.14 A strong commitment to serving as a “court of last resort” would suggest an interpretation of complementarity that grants States significantly more deference in determining how, when, and whom to investigate and prosecute to avoid ICC action. The ICC’s willingness to accept State party referrals of situations on their own territories (without requiring demonstrated inability to prosecute) is also suggestive of a burden sharing approach to complementarity. The OTP explicitly endorsed burden sharing in its Policy Paper on Case Selection and Prioritization, noting that when the requirements of complementarity are met as to a case, the Prosecutor may turn his attention to “other perpetrators that form part of the same or a different case theory, in line with a burden-sharing approach.”15

A burden sharing approach to engagement with regional courts and national courts exercising universal jurisdiction suggests the OTP should view the efforts of those institutions as potentially equally valuable to its own. As such, no default priority in resource allocation should be given either to opening ICC cases or to supporting those of other institutions. In line with the well-accepted principle of positive complementarity, the OTP may engage with other institutions in a variety of ways, including cooperation through sharing evidence, intelligence, and the like, as well as providing assistance, such as training and other forms of capacity building. In determining how to allocate resources among all potential accountability efforts, including its own, the OTP should be guided by the principle of comparative benefit.

II. Comparative Benefit

Comparative benefit analysis involves making predictions about the likely future effects of different institutional actions on disparate communities and comparing them to assess their relative value. Comparing predicted effects is both complicated and unstable in light of continually evolving social and political realities. Nonetheless, comparative benefit analysis is necessary to ensure that engagement efforts are both legitimate and efficient uses of scarce resources. This section sketches the contours of comparative benefit analysis in the context of engagement efforts and concludes with a call for greater dialogue about how it can best be performed.

The first step in comparative benefit analysis is to identify the likely net benefits of adjudication in each potential forum. This requires considering all potential benefits to each of the communities with an interest in a situation, as well as any potential harms that may result from adjudication. For instance, a case might provide opportunities for the pursuit of national goals of preventive punishment, regional goals of coordinated action, and global goals of norm expression. It is possible that prosecution by an institution outside the most affected State or States, whether at the ICC, a regional court, or a national court exercising universal jurisdiction, could fulfill all these goals simultaneously, albeit to different degrees. Often, however, the goals of one or more of these communities are in tension. In that case, priorities must be established, which may result in harm to some communities. For example, if a State adjudicating an international crime has different punishment norms than the State that suffered most directly from it, the former may impose punishment that undermines the goals of the latter. This could be considered a harm to the most affected national community, which may experience the punishment as an injustice. In such circumstances, it may be preferable for the ICC not to support the State seeking to exercise universal jurisdiction, especially if a more beneficial alternative is available.

In weighing potential benefits to different communities, special attention should be paid to the needs of the communities directly harmed by the crimes. Their interests are most strongly affected by adjudicative efforts, and decision-makers at the ICC and other institutions external to those communities should prioritize avoiding harm to them. This means that even if adjudication would provide benefits to the global community or a regional community, it should not be undertaken if there is a significant risk of harm to the most affected national communities. Such harm might arise, for instance, if the most affected communities prefer a non-criminal means of addressing serious crimes, such as a justice mechanism focused on reconciliation rather than punishment. Likewise, potential harm to affected communities might arise in situations where ongoing conflicts exist that might be exacerbated by prosecutorial efforts. If the OTP deems that the prosecutorial efforts of a regional court or national court exercising universal jurisdiction risk these or other harms to the most affected national communities, it should not provide support.

Where harm to affected communities is not suspected, the OTP should seek to determine the likely net benefits of an adjudicative effort and compare them to other options in deciding whether, and to what degree, to provide support. Generally, national courts exercising universal jurisdiction should be viewed as pursuing global justice goals akin to those pursued at the ICC.16 The benefits of universal jurisdiction cases therefore largely relate to the prevention of international crimes through norm expression.17 Such cases may also contribute to global crime prevention through individual and collective deterrence, although the likelihood of universal jurisdiction prosecutions remains low enough that any such effects are likely to be quite small.18 Some universal jurisdiction cases may also contribute to crime prevention by incapacitating particularly dangerous actors.

Regional adjudicative efforts can also help to prevent international crimes and may provide this benefit more strongly at the regional level compared to other adjudicative fora. Regional courts can also express uniquely regional norms, and their greater proximity to interested communities can magnify their impacts in this regard. The proposed African Criminal Court, for instance, will have jurisdiction over crimes of regional import, such as unconstitutional change of government.19 It will thus be in a unique position to promote such norms within the region.

To determine the net benefits of a given adjudicative effort, the OTP must take account of any harms it may cause. In addition to the kinds of harm to directly affected communities discussed above, adjudicative efforts can harm all relevant communities when they lack sufficient legitimacy. Legitimacy is a complex concept that cannot be unpacked fully here,20 but some of its basic features are worth mentioning. First, legitimacy, defined in terms of an institution’s “right to rule,”21 has both normative aspects, related, for instance, to the fairness of an institution’s procedures and outputs, and sociological components, referring to perceptions of the same.22 In either respect, legitimacy should be treated as a (mostly) scalar, rather than binary, concept. Although an institution might be declared entirely illegitimate below a threshold, such as when it shows blatant disregard for human rights, generally it is more appropriate to evaluate institutional legitimacy by degrees.

In deciding whether, and to what extent, to cooperate with another institution, the OTP must evaluate the institution’s legitimacy. If an institution fails to satisfy threshold legitimacy requirements, it should receive no support from the OTP. Above the threshold, however, decisions about whether, and how much, to cooperate should depend on a combination of the strength of the institution’s legitimacy and the benefits it is likely to provide. For instance, a regional court that is moderately legitimate, perhaps because it has significant resources challenges, but is expected to provide an important regional benefit by expressing regional norms, likely merits ICC support. In contrast, a national court exercising universal jurisdiction that has moderate legitimacy and is unlikely to contribute significantly either to global prevention or to the goals of most affected communities likely does not merit ICC support.

Once the ICC determines that the net benefits of a particular adjudicative effort may warrant its support, a cost-benefit analysis should be conducted. That is, the benefits of assisting another institution in its investigative and prosecutorial efforts should be weighed against the costs to the ICC of such assistance. The greater the benefits from non-ICC adjudication, the more assistance is warranted. However, if the ICC expects its own cases to provide greater benefits than those anticipated from the institution seeking support, it should direct its resources internally. In conducting this cost-benefit analysis, the OTP should bear in mind the potential multiplier effect of assistance to regional courts and national courts exercising universal jurisdiction. Cooperative efforts such as sharing evidence and providing training in one case are likely to have carry-on effects, enhancing the jurisdiction’s ability to engage in future prosecutions of international crimes. Where this multiplier effect is likely to be significant, such as when a national jurisdiction intends to pursue a significant number of universal jurisdiction cases, the OTP may determine that the benefits of engagement outweigh those of bringing additional cases before the ICC.

III. Conclusion

Although the ICC Statute does not explicitly task the Court with supporting and strengthening the accountability network, its Preamble affirms the importance of ensuring the effective prosecution of “the most serious crimes of concern to the international community as a whole […] by taking measures at the national level and by enhancing international cooperation”.23 OTP engagement with regional courts and national courts exercising universal jurisdiction is an important way to promote these goals. Practitioners, scholars, and supporters of international criminal justice should devote greater attention to developing principles to guide such engagement, including further developing the principles of burden sharing and comparative benefit.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   See, e.g., The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06, Judgment, 536 (TC VI, Jul. 8, 2019), available online

   (convicting Ntaganda of both rape and sexual slavery as war crimes and crimes against humanity, including when committed intra-group). ↩

2. 2.

   See, e.g., The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Judgment Pursuant to Article 74 of the Statute, ¶ 820 (TC I, Mar. 14, 2012), available online

   (holding that, with regard to children under fifteen, “to participate actively in hostilities” includes any activities or roles which put them at risk of becoming a target, and is not limited to direct participation in combat). ↩

3. 3.

   See, e.g., The Prosecutor v. Ahmad al-Faqi al-Mahdi, ICC-01/12-01/15-171, Judgment and Sentence, 49 (TC VIII, Sep. 27, 2016), available online

   (convicting al-Mahdi of war crimes related to the destruction of mosques and mausoleums). ↩

4. 4.

   These include, in particular, the states where crimes are committed and where defendants are nationals. ↩

5. 5.

   I have made similar arguments concerning OTP engagement with national courts exercising traditional forms of jurisdiction. See e.g., Margaret M. deGuzman, Legitimate Supra-National Adjudication in the New Era: The Requirement of Comparative Benefit, 55 Case W. Res. J. Int’l L. 147 (2023), available online; Margaret M. deGuzman, Complementarity at the African Court, in The African Court of Justice and Human and Peoples’ Rights in Context 645, 664–69 (Charles Chernor Jalloh, Kamari Maxine Clarke & Vincent Obisienunwo Orlu Nmehielle eds., 2017), available online. ↩

6. 6.

   For example, some early discussions of a potential international criminal court envisioned it as having exclusive jurisdiction over certain international crimes. See, e.g., Doudou Thiam, Tenth Report on the Draft Code of Crimes Against the Peace and Security of Mankind, U.N. Doc. A/CN.4/442, ¶ 36 (Mar. 20, 1992), available online

   (proposing the draft provision: “All States Parties to this Statute shall recognize the exclusive and compulsory jurisdiction of the Court in respect of the [enumerated] crimes.”) (emphasis added).

   International Law Commission, U.N. Doc. A/47/10, Report on the Work of its Forty-Fourth Session, Records of G.A. 47th Session Supp. 10, ¶ 41 (1992), available online.

   (“Some other members felt that the proposed court could have exclusive jurisdiction on certain international crimes and concurrent jurisdiction with national tribunals on other crimes.”). ↩

7. 7.

   See, e.g., About the Court, ICC, available online (last visited Jul. 8, 2023).

   (“As a court of last resort, [the ICC] seeks to complement, not replace, national Courts.”). ↩

8. 8.

   See, e.g., United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, June 15–July 17, 1998, U.N. Doc. A/CONF.183/13 (Vol. II), Summary records of the plenary meetings and of the Committee of the Whole, 68, 88, 116, 187 (2002), available online

   (reporting comments by Canada, Spain, Yemen, and Jordan, respectively, on the importance of the ICC being a “court of last resort”). ↩

9. 9.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], art. 17(1), available online.

   (The Statute’s drafters almost certainly intended “with jurisdiction” to refer to the traditional bases of jurisdiction, such as territoriality and active personality).

   See William A. Schabas, The International Criminal Court—a Commentary on the Rome Statute 453 (2d ed. 2016). ↩

10. 10.

    Margaret M. deGuzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law 18–33 (May 13, 2020). ↩

11. 11.

    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.

    (The Malabo Protocol would afford criminal jurisdiction to the African Court of Justice and Human Rights. The Malabo Protocol was adopted in 2014 but has not taken effect because it has not been ratified by the required number of states). ↩

12. 12.

    See deGuzman, supra note 5, at 672–73. ↩

13. 13.

    See, e.g., Padraig McAuliffe, From Watchdog to Workhorse: Explaining the Emergence of the ICC’s Burden-sharing Policy as an Example of Creeping Cosmopolitanism, 13 Chinese J. Int’l L. 259, 269 (Jun. 2014), available online, doi.

    (“Many of those who develop, theorize and practice international law (and international criminal law in particular) are driven by a normative ideal that development of the law may progressively catalyze the establishment of a cosmopolitan community which would accord all individuals equal moral status, regardless of any national borders.”).

    Darryl Robinson, A Cosmopolitan Liberal Account of International Criminal Law, 26 Leiden J. Int’l L. 127, 138 (Mar. 2013), paywall, earlier version available online, doi.

    (“Cosmopolitanism resonates with the aspirations of ICL: a concern for human beings that extends beyond borders, a willingness to embrace alternative governance structures to supplement state structures, and an inclusiveness of the concerns of the international community as a whole.”) (citations omitted). ↩

14. 14.

    The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11 OA, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, ¶ 40 (AC, Aug. 30, 2011), available online. ↩

15. 15.

    Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation 11 (Sep. 15, 2016), available online. ↩

16. 16.

    deGuzman, supra note 10, at 29. ↩

17. 17.

    Id. at 140. ↩

18. 18.

    Id. at 192. ↩

19. 19.

    Malabo Protocol, supra note 11, art. 28E. ↩

20. 20.

    For a discussion of various kinds of legitimacy, see deGuzman, supra note 10, at 9–14. ↩

21. 21.

    Allen Buchanan & Robert O. Keohane, The Legitimacy of Global Governance Institutions, 20 Ethics & Int’l Aff. 405 (Dec. 2006), paywall, doi. ↩

22. 22.

    See, e.g., Daniel Bodansky, Legitimacy in International Law and International Relations, in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art 321, 327 (Jeffrey L. Dunoff & Mark A. Pollack eds., 2012), available paywall, earlier version available online, doi.

    (“Normative legitimacy depends on whether an institution objectively has a right to rule—whether its claim is in some sense true […]. In contrast, [sociological] legitimacy concerns whether actors subjectively believe that an institution has a right to rule.”). ↩

23. 23.

    Rome Statute, supra note 9, Preamble. ↩

24. Suggested Citation for this Comment:

    Margaret M. deGuzman, 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, ICC Forum (Sep. 13, 2023), available at https://iccforum.com/decentralized-accountability#deGuzman.

    Suggested Citation for this Issue Generally:

    How Should the ICC Support Decentralized Accountability for Those Accused of Grave Crimes?, ICC Forum (Sep. 13, 2023), available at https://iccforum.com/decentralized-accountability.

Argument

II. The Public Problem: Remoteness from Political Community

The first point to clarify is that universal jurisdiction trials are conducted on behalf of a different community than domestic criminal trials. Most lawyers have a clear understanding that domestic criminal trials are conducted on behalf of the domestic public. Therefore, in the United Kingdom, criminal matters are described as Rex v. X, capturing the conception of being answerable to a local sovereign; in the United States, cases are labelled as People v. X, capturing the idea of being liable to one’s fellow citizenry; in France, criminal judgments are issued au nom du peuple français, while in China, criminal cases are in the name of the “People’s Procuratorate” at various local levels.

The community addressed by universal jurisdiction trials is quite different. Hannah Arendt famously disparaged the “common illusion that the crime of murder and the crime of genocide are essentially the same,” explaining that “[t]he point of the latter is that an altogether different order is broken and an altogether different community is violated.”4 The problem is that there is not yet a clear understanding of the political community on whose behalf universal jurisdiction prosecutions are undertaken. A number of alternatives present themselves, including the inter-state community, the international community, the affected victim community, and the domestic community of the prosecuting state.5 The paradox is that, of these, the political community with the most remote interest in the trial is very often that of the prosecuting state.

This question is of more than academic relevance. 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.

It is important that domestic courts develop an understanding of the communities on whose behalf universal jurisdiction trials are conducted. The ICC can help frame an understanding of the polycentric interests engaged by universal jurisdiction trials. A proposed definition of universal jurisdiction is included in Modern Guideline 1.1, understanding universal jurisdiction as a licence provided by the inter-state community to universalize the right of access to justice for victim communities so that the prosecuting state can prosecute certain heinous crimes of concern to the international community. Recognition of the communities implicated in universal jurisdiction trials provides the foundation for a trial that can better serve those on whose behalf it is conducted.

III. The Selectivity Problem: Remoteness of Interests

Where there is a disconnect between the legal communities of the prosecutor and the prosecuted, an impression can be created that a trial is simply political. The objectivity of the courtroom becomes questionable where it is a device through which one community imposes its laws upon another. The politics of universal jurisdiction are magnified by the fact that international criminal law can only ever be selectively enforced. One response to this is that prosecuting all persons responsible for international crimes is impossible. Yet problems arise where case selection is perceived as based on irrelevant or illegitimate interests.

It has become popular to describe universal jurisdiction in terms of an imperialist mission. A map of the nationalities of prosecutors and accused in universal jurisdiction prosecutions reveals a familiar though uncomfortable pattern. A survey of completed universal jurisdiction trials until 2020 shows that the seventy-five trials were conducted by eighteen prosecuting states, sixteen of which form part of the “Western European and Others” group in the United Nations.6 Conversely, the accused in universal jurisdiction trials (if we exclude the five trials against accused former Nazis) are drawn from thirteen states, none of whom are from the “Western European and Others” group and all of whom are classified as developing economies. The survey seems to repeat a historical pattern, evoking the spectre of a “newfangled civilizing mission” with domestic criminal courts in the global north delivering the rule of law to the global south.

Another common anxiety about universal jurisdiction extends to a concern that foreign domestic prosecutions could be manipulated or deployed as an instrument of legal warfare against political adversaries. This problem was raised by Henry Kissinger, himself a target of attempted universal jurisdiction prosecutions, who described universal jurisdiction as a form of “judicial tyranny” which could “[turn] into a means to pursue political enemies rather than universal justice.”7

The potential intellectual misstep in both the imperial and lawfare critiques is that they misconstrue the driving force behind universal jurisdiction prosecutions. While there may be significant rhetorical force in imagining universal jurisdiction oscillating ambivalently between imperialist interventions and aggressive show trials, these arguments are based more on reasonable suspicion than reasonable evidence. The reality is that states are not, and have never been, the main drivers of universal jurisdiction prosecutions. In practice, most if not all universal jurisdiction trials occur as a result of pressure from victims and victim-support groups. The problem is therefore not generally state overzealousness but state reluctance to prosecute. In practice, universal jurisdiction trials tend to be the result of a sensible wager on the part of the prosecuting state in each individual case, weighing diplomatic credit for participating in the prosecution of international crimes against the economic and diplomatic cost in international relations terms.8

These are an important insights, not only because of their descriptive accuracy but also because of their normative implications. By defining with more particularity the legal interests rightly engaged by universal jurisdiction prosecutions, it becomes possible to situate decision-making about case selection within a potential legal framework. Recharacterizing universal jurisdiction as an individual right rather than a state right (Modern Guidelines 1.1 and 1.2) provides access to the human rights proportionality framework, enabling states to balance individual rights against their own legitimate aims and interests (Modern Guideline 2.8). It is necessary to develop a coherent set of criteria by which states can achieve proportionality between affected communities and other legitimate aims of the prosecuting state. As suggested in Modern Guideline 2.9, criteria to be weighed in the balance should include:

1. international consensus as to the seriousness of the crime;

2. desire by victims or victim organizations for access to justice;

3. danger that offenses would not otherwise be prosecuted;

4. location of the accused;

5. effective administration of justice given quantity and quality of available witnesses and evidence;

6. vulnerability and security of victims;

7. impact on standing, reputation and diplomatic relations of the prosecuting state; and

8. cost.

Though a long way off, it is possible to envisage a time when the ICC could act as a court of review in relation to decisions to accept or decline jurisdiction against this criteria (Modern Guideline 6.1).

Of course, the risk of future abuse of the principle of universal jurisdiction should not be entirely disregarded. Universal jurisdiction should be exercised in good faith in accordance with a state’s rights and obligations under international law (Modern Guideline 2.2), with respect for rules relating to immunity (Modern Guidelines 2.5–2.7) and double jeopardy (Modern Guideline 2.4). Recognition of universal jurisdiction as a mechanism to provide victims with a right of access to justice in circumstances where it is not otherwise available also supports recognition of a principle of complementarity as between the prosecuting state and the territorial state or state of nationality. Universal jurisdiction should only be exercised where the territorial state or state of nationality is genuinely unwilling or unable to do so (Modern Guideline 2.10). Greater understanding of the objectives of universal jurisdiction also guides the way to recognition of criteria for the resolution of potential conflicts of jurisdiction between states (elaborated in Modern Guideline 2.11).

IV. The Proof Problem: Remoteness of Evidence

A further problem universal jurisdiction trials must address is the prosecuting state’s remoteness from the evidence. Remoteness from the evidence can be measured not only in geographical but also in psychological and physical terms, complicating the collection of, recollection of, and connection to evidence. The geographical distance, impact of trauma, justifiable fear by witnesses of retribution, and complexity of chains of command can build serious fault lines between what happened and what can be proved in universal jurisdiction trials.

In geographical terms, almost all relevant evidence and witnesses in universal jurisdiction trials will be located in a foreign country to which investigators and prosecutors may be denied access. This creates obvious problems for the collection of evidence. In the absence of direct access to evidence, it becomes necessary for domestic investigators and prosecutors to rely on indirect means of obtaining access, often through the “first responders” to atrocity, namely non-governmental organizations (NGOs). The involvement of NGOs in evidence collection can create problems for domestic courts not accustomed to accommodating third party investigators. NGOs are also increasingly having to come to terms with adapting their information-gathering techniques and developing more rigorous methodologies where there is a possibility this information may be used as criminal evidence in a foreign court (Modern Guideline 5.2). The guidelines can provide access to guidance on these complex matters, linking to guidelines established by the ICC and Eurojust for NGOs to follow in documenting international crimes (Modern Guideline 5.3).9

In psychological terms, the trauma, fear, social chaos, and delay caused by mass criminality are far from ideal incubators of truth and memory. Given it is rare for senior political and military leaders to document their involvement in atrocity, the bulk of evidence in such trials tends to be in the form of witness testimony. Trauma and fear can subject evidence recollection to very human fallibilities and can interfere with the reliability and credibility of witnesses. The challenge for domestic courts is to develop procedures that will assist a judge or jury to disaggregate true from false memory in a way that is fair to the accused while not disproportionately impacting or impairing the rights of traumatized or vulnerable victims (Modern Guidelines 3.3–3.5). There is much scope for the ICC to provide guidance to domestic courts (and develop more detailed guidelines) on victim and witness protection and support, including victim witness familiarization and preparation, the impact of trauma on evidence, procedural and evidentiary rules that mitigate victim trauma, psychological counseling, and witness protection (Modern Guideline 3.12).

In physical terms, international criminal law’s focus on higher-ranked individuals means universal jurisdiction trials must also factor in the accused’s remoteness from physical acts of atrocity. In recognition of this, international criminal law has developed its own distinctive modes of liability, recognizing that the trial’s focus is not the individual considered in abstraction but the individual as an element of the authority, institution, government, or even society the individual represents. Domestic criminal systems can face problems in circumstances where international criminal modes of liability are unfamiliar and where the idea of collective guilt is generally regarded as anathema to criminal justice. The ICC can play a role in encouraging greater adoption and guiding application of international criminal modes of liability in the prosecution of international crimes by domestic courts (Modern Guideline 3.7).

V. The Translation Problem: Remoteness from Context

While the presence of foreign elements is not unique to universal jurisdiction trials, domestic courts are not always prepared for the linguistic and cultural disconnect between the domestic courtroom and foreign criminal context in universal jurisdiction trials, particularly in cases of trial by jury. The role of a jury is to build a bridge between the law and the community to which it is applied, with jurors typically engaged to bring their joint experience of life, and common sense, to judgment of the facts. The problem is that there is often little joint or common between a domestic jury’s experience and the criminal context of foreign atrocity in universal jurisdiction trials. There is a strong argument for reconsidering the role of the jury in universal jurisdiction trials (Modern Guideline 3.1).

Of course, even in judge-led trials, the adjudication task is greatly hampered when the judge is not from the country in which the crime has occurred and has no knowledge of relevant factors such as language, geography, locations where the crime took place, distances, cultural idiosyncrasies, and relevant political or historical background. Judges sitting on universal jurisdiction trials should be encouraged to develop guided expertise on international criminal law, as well as on the historical, political, and cultural context in relation to which the alleged offense took place (Modern Guideline 3.2). Courts have demonstrated their capacity to build in adaptations where witnesses or defendants whose cultural attributes and communication style differ from those of courtroom personnel. For example, judges in Australia and Canada, working with indigenous populations, are required to participate in appropriate training and development programs, designed to explain contemporary Aboriginal society, customs, and traditions. The Dutch War Crimes Unit has employed an anthropologist as part of their team to enable a greater understanding of culturally contextual issues associated with universal jurisdiction trials. Germany is considering a move toward specialized war crimes chambers, with judges specially trained to deal with such cases.

The foreign language element also creates complications in universal jurisdiction trials. In linguistic terms, the nature of judicial proceedings is invariably altered when mediated through the mechanism of a foreign language interpreter. The domestic court must ensure it has access to adequate trained interpreters prior to the trial’s commencement (Modern Guideline 3.8) and all court actors should inform themselves of, and be sensitive to, the challenges created by court interpretation (Modern Guideline 3.10). Helpful guidelines as to the numbers of interpreters, duration, and working conditions are available in the ICC’s Registry Regulations, and could be elaborated in the guidelines.10

Finally, the problem of translation is not merely about how the courtroom understands foreign communities, but also how certain communities understand the foreign courtroom. International criminal law, like domestic criminal law, is ultimately a tool to achieve certain ends. These ends go beyond the individual accused, the individual victim, and the domestic community of the prosecuting state. The capacity for international criminal law to achieve its goals ultimately depends on the expressive function of individual trials as a venue for the reconciliation of the interests of the international community, the inter-state community, and victim communities. It is critical that domestic courts exercising universal jurisdiction establish effective lines of communication with affected communities, explaining and publicizing the trial and its outcomes among those communities (Modern Guidelines 4.1–4.3).

VI. Conclusion

Remoteness is something of a leitmotif in universal jurisdiction trials. Universal jurisdiction trials are remote from the political communities on whose behalf they are undertaken, potentially compromised by external interests, physically distanced from the evidence to be considered, and lack familiarity with the cultural context and language in which the crime occurred. These challenges can affect both the conduct of the trial and its impact. When a universal jurisdiction trial is poorly executed, the danger is that it has the capacity to serve as a corrosive rather than constructive agent, wasting the resources of domestic courts and failing to achieve the goals of international criminal law. This comment has sought to digest some of the lessons learned from universal jurisdiction trials to date and distil them into guidelines provided in the attached Annex. These guidelines include a role for the ICC in providing advice and guidance to domestic courts on case selection, conduct of, and outreach in universal jurisdiction trials. Given greater resources and state will, the ICC is professionally well equipped to act as a coordinating mechanism within the broader international criminal system, providing advice, assistance, and secondment of officials. It may even be possible to imagine that, one day, the ICC might act as an avenue of judicial review to mediate the broad exercise of universal jurisdiction by states within an international criminal legal system.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (2011). ↩

2. 2.

   Luis Moreno-Ocampo, ICC Prosecutor, Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court (Jun. 16, 2003), available online. ↩

3. 3.

   Office of the Prosecutor, ICC, Annual Report (Dec. 1, 2022), available online. ↩

4. 4.

   Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1963). ↩

5. 5.

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

6. 6.

   Data is drawn from Leslie Johns, Máximo Langer & Margaret E. Peters, Migration and the Demand for Transnational Justice, 116 Am. Pol. Sci. Rev. 1184, 1189–90 (Nov. 2022), available online, doi. ↩

7. 7.

   Henry A. Kissinger, The Pitfalls of Universal Jurisdiction, Foreign Aff. (Jul. 1, 2001), paywall, archived. ↩

8. 8.

   Máximo Langer, The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes, 105 Am. J. Int’l L. 1 (Jan. 2011), available online, earlier version, doi. ↩

9. 9.

   Eurojust & ICC Office of the Prosecutor, Guidelines for Civil Society Organizations: Documenting International Crimes and Human Rights Violations for Accountability Purposes (Sep. 21, 2022) (hereinafter Guidelines), available online, doi. ↩

10. 10.

    International Criminal Court, Regulations of the Registry 27 (Mar. 6, 2006, as amended Aug. 1, 2018), available online. ↩

11. 11.

    Guidelines, supra note 9. ↩

12. 12.

    Subject to the Assembly of States Parties to the International Criminal Court agreeing to provide this mechanism. This would require an amendment to the Rome Statute. ↩

13. Suggested Citation for this Comment:

    Devika Hovell, Modern Guidelines for Universal Jurisdiction, ICC Forum (Sep. 13, 2023), available at https://iccforum.com/decentralized-accountability#Hovell.

    Suggested Citation for this Issue Generally:

    How Should the ICC Support Decentralized Accountability for Those Accused of Grave Crimes?, ICC Forum (Sep. 13, 2023), available at https://iccforum.com/decentralized-accountability.

Argument Continued

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. In the absence of a comprehensive study of the length of ratification processes in Africa, it is reasonable to rely on a comparison with other ratification processes, especially those of similar instruments, and from there gain a perspective. In that regard, we can note that it took five years and three months for the African Charter on Human and Peoples’ Rights, also known as the Banjul Charter, to enter into force. It is worth mentioning here that the entering into force of the Banjul Charter was much more demanding as it required ratification by a simple majority of member states of the then Organisation of African Unity (OAU).8 At that time, this meant twenty-six member states.9 Another example is the ratification process of the Protocol on the establishment of the African Court on Human and Peoples’ Rights, also known as the Ouagadougou Protocol. Almost as for the Banjul Charter itself, five years and seven months separated the adoption and the coming into force of the Ouagadougou Protocol.10 Fifteen instruments of ratification were required.11 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. Chacha Murungu observed that the Malabo process was a reaction to the indictment and prosecution of African state officials either by the ICC or by the domestic courts of some European states, especially France, the United Kingdom, Spain, and Belgium.12 The idea was, at least according to Murungu, to create a competitor to the Hague Court.13 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.14 Even voices generally sympathetic to the Malabo project recognized that the reaction against the ICC was a significant factor. One of them is Charles Jalloh who argued that AU’s concerns in relation to the ICC led African leaders to start “fast-tracking”15 their plans for the creation of a regional criminal court even if the said concerns were not the “impetus behind the proposal.”16 Indeed, when, in October 2013, the U.N. Security Council refused to consider Kenya’s request to defer the ICC proceedings against its then president and vice president, the AU Assembly declared itself “deeply disappointed” and asked the Commission to “move with speed”17 and conclude the process of extending the jurisdiction of the African regional criminal court.18

The political engagement of individual states also demonstrates the link between the Malabo project and ICC’s activities in Africa. ICC situation countries were the most committed. One example is Kenya whose then President Uhuru Muigai Kenyatta and then Vice President William Kipchirchir Samoei Arap Ruto were both indicted.19 While it has not ratified the Malabo Protocol yet, Kenya is the single country to have made a financial pledge for the functioning of the would-be court.20 For obvious reasons, Kenya was also the most engaged country in the ICC’s Assembly of State Parties, pleading, among other reforms, for a re-wording of the paragraph of the Preamble on complementarity in the Rome Statute to include regional courts.21

Despite its vehement defense of immunity in favor of state officials, there is no reason to conclude that the AU is opposed to the international criminal justice project in its entirety. Even at the hottest of the AU-ICC tense relationship, the Organisation kept reaffirming its “total rejection of impunity” in its resolutions.22 Beyond rhetoric, a more meaningful example of that commitment is the Organisation’s support of the trial of the former Chadian President Hissène Habré by mandating the Republic of Senegal to try the suspect “on behalf of Africa”.23 It is for that purpose that the EAC were created.24

The AU has manifested her willingness to use Habré’s trial as a precedent and learn/build from it. In that regard, in July 2017, the AU Commission organized a seminar on “carrying forward the legacy of the Extraordinary African Chambers in the trial of Hissène Habré.”25 Its ambitious objectives were to engage African states in the progressive development of international criminal justice, build the capacity of the African judiciary, public prosecutors, civil society, and legal fraternities on international criminal justice; document and highlight EAC’s contributions to international criminal justice, promote African support for international criminal justice, devise a framework for the exercise of international criminal justice in Africa, and promote accountability for the end of impunity for gross human rights violations.26 It would therefore make sense to engage the AU on that basis.

B. Decentralizing Accountability Even Further, and Better

It is generally admitted that national prosecutions within territorial states are preferable to trials in international courts or tribunals. The United Nations’ position on the question is also that tribunals are to be established as close to the concerned victims as possible to the extent practicable.27 In that regard, while a regional criminal court (based on the Malabo Protocol, for example) would unquestionably be further from victims than national courts, it would be significantly closer to them than an international court based in Europe. That reasoning can be pushed further to argue that national regionalized criminal courts are even better. This would still be the case even if they were to be established elsewhere than in the territorial state, provided that the deciding actors use some political common sense. In the African context, this would mean that the judicial institution would be created/chosen in the sub-region where the suspect comes from and the victims live(d) (East, West, North, South, and Center of the continent, accordingly).

C. Killing Two Birds With One Stone: Rendering Justice and Setting the Foundations of a Sustainable Enforcement Mechanism

Regionalized solutions are not to be viewed as ends in themselves. Unlike regional permanent structures (Malabo Protocol-like chambers), they set the ground/reinforce national systems which are, by definition, the most sustainable. That is because they are integrated parts of national judiciaries.28 An AU-ICC agreement to reinforce them would, by the same token, be contributing to the creation of a sustainable mechanism of international criminal law indirect enforcement.29 This is of an even greater significance if the proceedings are to take place in a third country basing its jurisdiction on universality—as was the case for Hissène Habré.

A legitimate question might be whether direct engagement with the country enforcing universal jurisdiction would not achieve the same or better result. It needs to be first highlighted that this comment is not advocating an AU-ICC cooperation mechanism as an alternative to the ICC’s direct engagement with states enforcing universal jurisdiction. On the contrary, the two approaches are complementary to each other if decentralized accountability is to be pursued. It is also worth mentioning that there are several obstacles to the enforcement of universal jurisdiction by individual states in the African context. One of them is the inexistence of a general framework for police/judicial cross-border assistance and cooperation. It comes as no surprise that, despite the existence of universal jurisdiction legislations in many countries across the continent, the first trial on that basis took place in a regionalized structure (the EAC) supported by the AU.30

II. What Can the ICC Do? What Form of Cooperation With the AU?

If a cooperation mechanism between the ICC and the AU is one day agreed upon, it is advisable that the agreement covers the judicial relationship between the ICC and the regionalized criminal courts to establish aspects of cooperation at a purely technical level.

A. Organising the Judicial Relationship Between the ICC and the Could-Be Regionalized Criminal Courts

The complementarity regime of the Rome Statute does not textually contemplate a relationship between the ICC and a possible regional/sub-regional criminal court. This could create an overlap and raise a positive conflict of jurisdiction between the ICC and the African would-be regionalized judicial entity. In relation to the could-be Criminal Section in the African Court on Human and Peoples’ Rights (based on the Malabo Protocol), Charles Jalloh holds the view that, while complementarity was initially conceptualized to regulate the relationships between the ICC and state parties to the Rome Statute, its regime is flexible enough to regulate the jurisdictional relationship between the ICC and regional criminal courts.31 Miles Jackson shares that view. He suggests that while Article 17 of the Rome Statute refers to states’ jurisdictions, prosecutions by a regional criminal court should be seen as prosecutions by a state.32 The argument is that regional criminal courts are to be seen as a lawful way for states to collectively exercise their primary responsibility to investigate and prosecute crimes within their jurisdiction.33 Therefore, the regional court exercises jurisdiction by delegation.34 The approach has been wrongly labelled as “hierarchical” in favor of the ICC.35 Its critics argue that the model implies that the ICC would remain “at the apex of international criminal law enforcement.”36 They argue that the model envisages a situation in which a judgment by the regional court might be superseded by one of the ICC if the former’s judgment is found ’not to measure up to the standards of the ICC Statute and therefore to exemplify the inability or the unwillingness of the African Court to exercise jurisdiction in a particular case.“37 This is indeed the implication of considering the regional court as a national jurisdiction but it does not make the model “hierarchical.” Complementarity does not give precedence to the ICC. On the contrary, it means that the Hague Court will always have to justify its intervention.

It is an open question whether the above solution would apply to regionalized judicial divisions created by an agreement between the AU and one of its member states. However, if that member state is also a state party to the Rome Statute, Jackson’s approach is the only logical option, if conflicting obligations are to be avoided. An AU-ICC agreement could possibly extend the application of that solution even to situations where a regionalized Court would be created in a non-state party to the Rome Statute.

The alternative to the AU-ICC agreement could be that the regionalized criminal court itself negotiates its relationships with the ICC as soon as it is established. In that case, the regionalized court would enter the negotiation with a pre-existing legal framework, i.e. its statute or constitutive instrument. There is no guarantee that that instrument would be compatible with the Rome Statute. If the hosting state is a party to the Rome Statute, it could run the risk of finding itself with conflicting obligations. In the African context, if the EAC is to create a precedent, i.e. if other regionalized courts/chambers are to be created in national judiciaries of African states, they are, more likely than not, to be created in states parties to the Rome Statute.38 It is therefore safer to have the AU-ICC agreement in place at the time the instrument for the regionalized court is drafted. Such arrangements were not necessary for the EAC, as no overlap with the ICC was to be envisaged given the crystal-clear differences in their respective jurisdictions, ratione temporis.39

Even if the regionalized criminal court had to be created in a non-state party to the Rome Statute, an agreement between the ICC, on the one hand, and the AU or the hosting state, on the other, would be necessary. Its function would not be to prevent the hosting state from facing conflicting obligations but to organize a “division of labor” between the two judicial institutions and to prevent potential conflicts due to parallel proceedings or contradictory judgments.

Irrespective of the legal status of the hosting state of the regionalized court in relation to the ICC (party/not party to the Rome Statute), the Malabo Protocol’s approach to complementarity should be avoided. Indeed, the Protocol does provide for complementarity but only between the African Regional Court, on the one hand, and national courts, on the other, as well as courts of the regional economic communities.40 Neither the ICC nor the Rome Statute are mentioned in the relevant provision.41 The omission means that African leaders wanted to see the would-be African Criminal Court as an alternative, rather than a complement to the ICC, despite the fact many African states were already parties to the Rome Statute. This view is confirmed by AU’s repetitive calls to its member states to not cooperate with the ICC.42 If the African Regional Criminal Court (based on the Malabo Protocol) ever becomes operational, a conflict of jurisdiction with the ICC is more than likely, at least in relation to the four ICC crimes. Unlike the Malabo Protocol in relation to the ICC, the absence of reference to regional criminal courts by the Rome Statute is justified by the inexistence of such entities, functional or in sight, at the time the treaty was drafted.

B. Technical Aspects of the Potential Cooperation Agreement

For the implementation of the complementarity principle, the OTP can go beyond judicial relationships in the agreements it concludes. A recent example is the cooperation agreement concluded in 2021 between the OTP and the government of Colombia.43 Among other aspects, the cooperation agreement includes commitments to exchange lessons learned and best practices between the OTP and Colombian institutions. It also mentions projects and programmes aimed at Colombian legal professionals.44 There is no apparent reason why a similar agreement would not be possible with a regional organization like the AU, especially given the number of member states which are also parties to the Rome Statute.45

There are nevertheless limits to what the ICC can do. Several times, the ICC Assembly of State Parties has reiterated that the Court is not a development agency.46 It can therefore not engage in big and budget-consuming projects of capacity building. However, it is the view of this comment’s author that this does not prevent short-time training sessions and judicial dialogue initiatives.

The exchange of experience during the drafting processes of the legal instruments of the could-be regionalized judicial divisions would be one of the most valuable aspects. This form of cooperation could have two benefits, at least. The first would be to help adopt a reasonably enforceable regime. Had the discussions/drafting of the Malabo Protocol involved lessons learned from the ICC, a more realistic instrument could probably have been drafted. The Malabo Protocol is indeed over-ambitious in several aspects. One example is the subject-matter jurisdiction the instrument gives—intends to give—to the African Court. The list of fourteen crimes is quite unprecedented in international criminal law.47 If international criminal courts—like the ICC—struggle carrying out their four crimes mandate, it is almost a given that a judicial entity with significantly fewer resources would have enormous difficulties carrying out a fourteen crimes mandate, albeit within a more limited geographical area.

The second benefit of that form of cooperation would be to help prevent ultra-regressive rules from being included in the constitutive instrument of the regionalized court. One example is the rules on immunities. Since the Arrest Warrant case, and even before, it is largely admitted that personal immunities do not apply before international/internationalized courts.48 Nevertheless, the Malabo Protocol included immunities for serving heads of state and government as well as other “senior state officials.”49 The immunity rule of the Malabo Protocol has been one of the most criticized provisions, both internally and externally. AU partners were vocal in their criticism of the rule. In the 2015 Judicial Dialogue, for example, the representative of the European Union announced that his organization would not support the project financially because of that rule—and the silence of the protocol on the relationship with the ICC.50 It is less known that the immunity rule was approved despite concerns raised within internal AU circles regarding its conformity with international law, domestic laws of member states, and jurisprudence.51 There are therefore reasons to hope that AU-ICC engagements before and during the drafting processes would significantly reduce the probability of having such rules in the instruments to govern the regionalized criminal courts discussed in this comment.

The mechanisms to exchange information and evidence items on specific cases would properly be directly negotiated between the respective judicial bodies, i. e. the ICC and the regionalized criminal court. However, a commitment to put the necessary channels in place could be part of the AU-ICC agreement.

Conclusion

This comment has argued for the establishment of a cooperation mechanism between the ICC and the AU aiming at supporting regionalized judicial divisions within national judiciaries as a mechanism to enforce international criminal law. The preference for regionalized chambers within national courts is in part justified by the poor prospects of the project to create a Criminal Section within the African court on human and peoples’ rights. Those structures would also definitely bring justice closer to victims and could arguably increase the capacity of the national judiciaries, for a more sustainable enforcement of international criminal law. This comment has also reflected on the major lines of a possible agreement between the ICC and the AU for that purpose. If such an agreement is to be established, it will be preferable that it includes general principles on the judicial relationship between the ICC and the envisioned regionalized courts as well as elements of a cooperation mechanism on purely technical aspects.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble ¶ 10, Article 1 available online. ↩

2. 2.

   Id. Art. 17. ↩

3. 3.

   Office of the Prosecutor, ICC, Paper on some Policy Issues Before the Office of the Prosecutor, 4 (Sep. 2003), available online. ↩

4. 4.

   Charles Chernor Jalloh, The Place of the African Criminal Court in the Prosecution of Serious Crimes in Africa, in The International Criminal Court and Africa 306 (Charles Chernor Jalloh & Ilias Bantekas ed., Oct. 5, 2017), available online, doi. ↩

5. 5.

   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. ↩

6. 6.

   Id. Art. 11. ↩

7. 7.

   See status list at African Union, List of Countries Which Have Signed, Ratified/Acceded to the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (May 20, 2019), available online. ↩

8. 8.

   African Charter on Human and People’s Rights, Art. 63 (Jun. 27, 1981) [hereinafter Banjul Charter], available online. ↩

9. 9.

   Afrique. 23e Sommet de l’O.U.A., Encyclo. Universalis, available online (fr.) (last visited Aug. 26, 2023); De L’OUA À L’Union Africaine: Histoire et Institutions, RFI, available online (fr.) (last visited Aug. 26, 2023).

   (In 1987, the OAU comprised fifty member states. Today’s AU comprises fifty-five member states. The five members which joined/rejoined the OAU/AU after 1987 are the Republic of Namibia (1990), the Republic of Erythea (1993 …), the Republic of South Africa (1994), the Republic of South Sudan (2011), and the Kingdom of Morocco (2017) ). ↩

10. 10.

    For the ratification process and the status list of the Ouagadougou Protocol, see African Union, List of Countries Which Have Signed, Ratified/Acceded to the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (Feb. 14, 2023), available online. ↩

11. 11.

    Protocol to the African Charter on Human and Peoples’ Rights on the Establishment an African Court on Human and Peoples’ Rights, Art. 34(3) (adopted Jun. 10, 1998, entered into force Jan. 25, 2004) [hereinafter Ouagadougou Protocol], available online. ↩

12. 12.

    Chacha Bhoke Murungu, Towards a Criminal Chamber in the African Court of Justice and Human Rights, 9 J. Int’l Crim. Just. 1067, 1081 (Nov. 2011), paywall, doi. ↩

13. 13.

    Id. ↩

14. 14.

    Id.; see also Max du Plessis, A New Regional International Criminal Court for Africa?, 25 SA J. Crim. Just. 286 (2012), paywall; see also Ademola Abass, The Proposed International Criminal Jurisdiction for the African Court: Some Problematical Aspects, 60 NILR 27, 37–42 (May 2013), paywall, doi. ↩

15. 15.

    Jalloh, supra note 4, at 315. ↩

16. 16.

    Id. ↩

17. 17.

    African Union, Assembly/AU/Dec.493(XXII), Decision on the Progress Report of the Commission on the Implementation of the Decisions on the International Criminal Court, ¶ 13 (Jan. 21, 2019), available online. ↩

18. 18.

    Id. ↩

19. 19.

    Today, William Kipchirchir Samoei Arap Ruto is president of the Republic of Kenya. ↩

20. 20.

    Amnesty International, Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court 11 (2016), available online. ↩

21. 21.

    Kenya: Proposal of Amendments, C.N.1026.2013.TREATIES-XVIII.10, Submission by the Republic of Kenya on Amendments to Rome Statute of the International Criminal Court for Consideration by the Working Group on Amendments, ¶ 5 (Mar. 14, 2014), available online.

    (Here is the re-wording suggested by Kenya to the Rome Statute’s Preamble ¶ 10: “Emphasizing that the International Criminal Court established under this Statute shall be complementary to national and regional criminal jurisdictions.”). ↩

22. 22.

    Among many documents, see African Union, Report of the Committee of Eminent African Jurists on the Case of Hissène Habré (Jul. 2006), available online. ↩

23. 23.

    African Union, Assembly/AU/Dec.127(VII), Decision on the Hissène Habré Case and the African Union Doc. Assembly/AU/3(VII) (2007), available online. ↩

24. 24.

    See Chambres Africaines Extraordinaires, available online (last visited Aug. 26, 2023).

    (The AU-Senegal agreement to create the chambers, the Statute of the Chambers, and other relevant information on the EAC can be found here). ↩

25. 25.

    A Seminar on Carrying Forward the Legacy of the Extraordinary African Chambers in the Trial of Hissène Habré, AU (Jul. 2017), available online (last visited Aug. 26, 2023). ↩

26. 26.

    Id. ↩

27. 27.

    Report of the Secretary-General, U.N. Doc. S/2004/616, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, ¶ 40 (Aug. 23, 2004), available online. ↩

28. 28.

    In relation to the EAC, see Bernard Ntahiraja, Universal Jurisdiction and the Extraordinary African Chambers in the Senegalese Judicial System: Towards a Replicable Enforcement Model?, 24 Afr. Y.B. Int’l L. Online 272, 285–88 (2019), paywall, doi. ↩

29. 29.

    See M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 24 Va. J. Int’l L. 81, 82 (Jan. 2001), available online.

    (For the enforcement of international criminal law, Bassiouni distinguishes a “direct enforcement system” in the hands of international courts and an “indirect enforcement system” by national authorities). ↩

30. 30.

    See Amnesty International, Universal Jurisdiction: A Preliminary Survey of Legislation Around the World (Oct. 2011), available online. ↩

31. 31.

    Jalloh, supra note 4, at 294. ↩

32. 32.

    Miles Jackson, Regional Complementarity: The Rome Statute and Public International Law, 14 J. Int’l Crim. Just. 1061, 1062 (Dec. 2016), available online, doi. ↩

33. 33.

    Id. at 1067–68. ↩

34. 34.

    Id. ↩

35. 35.

    Balingene Kahombo, Towards Coordination of the Global System of International Criminal Justice With the Criminal Court of the African Union, in International Criminal Justice in Africa 1 (HJ van der Merwe & Gerhard Kemp eds., 2018), available online. ↩

36. 36.

    Id. citing Harmen van der Wilt, Complementarity Jurisdiction (Article 46H), in The African Criminal Court: A Commentary of the Malabo Protocol 187, 191 (Gerhard Werle & Moritz Vormbaum eds., Apr. 13, 2017), available online, doi. ↩

37. 37.

    van der Wilt, supra note 36, at 191. ↩

38. 38.

    It is reasonable to assume those states who are parties to the Rome Statute are more open to hosting sub-regional criminal courts than the states which are not. As of this writing, thirty-three African states are parties to the Rome Statute. Infra note 45. ↩

39. 39.

    Statute of the Extraordinary African Chambers Within the Courts of Senegal Created to Prosecute International Crimes Committed in Chad Between 7 June 1982 and 1 December 1990, Annex Art. 1 (Aug. 2012), available online (fr.), trans. available online.

    (While, roughly put, the ICC has jurisdiction for crimes committed after July 1st, 2002, the EAC were created to prosecute crimes committed in Chad between June 7, 1982 and December 1, 1990). ↩

40. 40.

    Malabo Protocol, supra note 5, at Art. 46H. ↩

41. 41.

    Id. ↩

42. 42.

    See, e.g., African Union, Executive Council Thirty-Sixth Ordinary Session, Doc. EX.CL/1218(XXXVI), Decision on the International Criminal Court, ¶ 3(i) (Feb. 2020), available online. ↩

43. 43.

    Cooperation Agreement Between the Office of the Prosecutor of the International Criminal Court and the Government of Colombia (Oct. 28, 2021), available online. ↩

44. 44.

    Id. Arts. 4, 5. ↩

45. 45.

    The States Parties to the Rome Statute, ICC, available online (last visited Aug. 26, 2023).

    (As of today, there are thirty-three African states parties to the Rome Statute). ↩

46. 46.

    International Criminal Court, ASP, ICC-ASP/10/23, Report of the Court on Complementarity 5, 22 (Nov. 11, 2011), available online. ↩

47. 47.

    Malabo Protocol, supra note 5, at Art. 28A.

    (The Criminal Chamber of the African Court would have jurisdiction over genocide, war crimes, crimes against humanity, aggression, unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes and illicit exploitation of natural resources). ↩

48. 48.

    Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ, Judgment, ¶ 61 (Feb. 14, 2002), available online. ↩

49. 49.

    Malabo Protocol, supra note 5, at Art. 46A bis. ↩

50. 50.

    European Union Statement at the African Judicial Dialogue (Nov. 6, 2015), available online.

    (“Regarding the matter of an expanded African Court, I can reconfirm that the EU is not in a position to support the Malabo Protocol creating the additional Criminal Chamber as it includes the provision of immunity for sitting Heads of State and Senior state officials and lacks complementary with the ICC. ”). ↩

51. 51.

    This appeared, for instance, during discussions between delegations at the Ministerial Meeting considering Malabo Protocol Article 46A bis immunities. See African Union, STC/Legal/Min/Rpt, First Ministerial Meeting of the Specialized Technical Committee, ¶ 25 (May 2014), available online. ↩

52. Suggested Citation for this Comment:

    Bernard Ntahiraja, Decentralized Accountability via Ad Hoc National Regionalized Judicial Bodies in Africa: A Potential Role for the ICC?, ICC Forum (Sep. 13, 2023), available at https://iccforum.com/decentralized-accountability#Ntahiraja.

    Suggested Citation for this Issue Generally:

    How Should the ICC Support Decentralized Accountability for Those Accused of Grave Crimes?, ICC Forum (Sep. 13, 2023), available at https://iccforum.com/decentralized-accountability.

Argument

II. A Place for Universal Jurisdiction in the International Criminal Justice Project

UJ has a unique role to play for those international crimes committed on the territory (or by nationals) of states unwilling or unable to prosecute, and in respect of which the ICC does not have jurisdiction or no other international tribunal has been established. UJ is then the last resort for criminal accountability. A case in point is Syria. Syria is not a party to the ICC’s Rome Statute, the U.N. Security Council has not referred the situation in Syria to the ICC Prosecutor, nor is the establishment of an ad hoc tribunal envisaged. Faced with this apparent accountability deficit, some (European) states, egged on by non-governmental organizations, have started to exercise UJ over suspected Syrian war criminals. Especially Germany has become “a poster child” for UJ, after German courts convicted Syrian intelligence officials for international crimes in 2021–2022 (al-Khatib in Koblenz trial).5

Also where the ICC does have jurisdiction over a particular situation, however, there is a role for UJ, given that the ICC has limited (budgetary) resources and focuses on those perpetrators bearing the greatest responsibility. This is currently happening with respect to the situation in Ukraine, over which, apart from Ukraine itself, the ICC and UJ states exercise jurisdiction.6 Proper coordination between the ICC and UJ states will be called for in such cases.7

UJ prosecutions tend to focus on lower-level perpetrators as well as perpetrators who have fallen out of favor with their own government, which limits the potential for diplomatic fall-out.8 UJ prosecutions are typically brought against presumed offenders who are already present on the territory of the prosecuting state, e.g., who have reached the territory by means of migratory streams from conflict zones.9 Precisely because of this territorial presence, UJ states may consider the exercise of UJ to be in their interest, such as their interest to provide justice to and integrate victim communities (e.g., from Syria), which may in turn lead to societal stabilization.10 Given states’ tendency to couple the exercise of UJ with the pursuit of some form of national interest, UJ will remain a relatively exceptional phenomenon.11

III. UJ States and the ICC: Partners in International Criminal Justice

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,12 but more could perhaps be done with regard to UJ states.13

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. On March 28, 2022, Eurojust created JIT to support member states carrying out investigations (exercising UJ) regarding crimes committed in Ukraine; this JIT was, for the first time ever, joined by the ICC’s OTP on April 25, 2022.14 On this occasion, ICC Prosecutor Karim Khan forcefully stated:

[T]he participation of my Office in this JIT will not be a one-way street. We do not wish to only be the recipients of information and evidence. We also want to serve as an effective partner with respect to the conduct of domestic proceedings in relation to core international crimes, in line with the principle of complementarity. In that spirit, my Office will be seeking to identify all opportunities through which it can provide information and evidence to the concerned national authorities in support of their investigations and prosecutions.15

Eurojust’s spokesman has clarified that:

[T]he JIT countries and the ICC will exchange evidence necessary for the investigations and work in close cooperation.16

In addition, investigators of selected EU member states have been seconded to the ICC or worked with ICC teams on the situation in Ukraine.17 Coordination will ensure that victims and witnesses are not retraumatized as a result of multiple interviews by the ICC and UJ states.18

This novel form of cooperation between the EU and European UJ states on the one hand, and the ICC on the other could (finally) make the ICC a “giant with arms”, as the ICC’s OTP may well be the main beneficiary of the (evidentiary) outcomes produced by the JIT.19 Obviously, this does not mean that UJ states will be reduced to being subcontractors running errands for the ICC. The ICC will—and should—retain its autonomy and its own investigative capacity. UJ states, for their part, do not give up the power to initiate their own prosecutions. But they will benefit from information shared by the ICC (albeit on a discretionary basis), by other UJ states (e.g., via the Eurojust Genocide Network),20 and by U.N. mechanisms and teams (Syria, Myanmar, ISIL).21

Whether this model of cooperation between UJ states and the ICC could be replicated in other situations is not fully clear yet. Much will depend on the political willingness of UJ states and how cooperation on Ukraine will be assessed. The EU, in any event, appears to have the ambition to further strengthen cooperation across the board between EU member states (exercising UJ) and the ICC. Indeed, on May 30, 2022, the European Parliament and the Council amended the Eurojust Regulation, which explicitly provides henceforth that Eurojust will:

[S]upport Member States’ action in combating genocide, crimes against humanity, war crimes and related criminal offences, including by preserving, analysing and storing evidence related to those crimes and related criminal offences and enabling the exchange of such evidence with, or otherwise making it directly available to, competent national authorities and international judicial authorities, in particular the International Criminal Court.22

Accordingly, it is to be expected that European UJ states will more regularly make evidence available to the ICC. Such evidence-sharing will often result from “structural” UJ investigations (as, for instance, carried out by German authorities), which focus on an entire situation rather than on specific incidents or perpetrators.23

Cooperation between ICC and UJ states is most logical and practical where both parties investigate the same situation. Cooperation can also be envisaged, however, with respect to a situation that is investigated and prosecuted by only one party, e.g., where an UJ state has jurisdiction, but the ICC has not. In this case, cooperation will not concern the sharing of evidence, but may pertain more generally to an exchange of best practices on how to properly conduct an atrocity trial. For instance, the ICC could have advised German law enforcement authorities on how to conduct the above-mentioned al-Khatib trial, which concerned atrocities committed in Syria over which the ICC does not have jurisdiction. Such cooperation could have prevented problems regarding access to translation and transcripts, outreach, truth-seeking, and witness protection which have cast a shadow over an otherwise exemplary trial.24 Obviously, this type of ICC support will be dependent on a request by the UJ state, and on the availability of ICC resources.

Apart from cooperating regarding specific situations or cases, the ICC and UJ states may, more generally, exert mutual influence on each other through their respective contributions to the development of international criminal law and justice. Most obviously, in light of its international authority in the field of international criminal law (ICL), the ICC’s application and interpretation of ICL will influence the practice of UJ states, especially states parties to the Rome Statute which have adopted ICC implementation legislation. But perhaps less obviously, in the reverse scenario, ICL practice in UJ states may impact on, or at least provide inspiration for the ICC, in terms of, e.g., crime selection and procedural rights. Thus, it has been argued that UJ states may want to focus on sexual and gender-based violence, which has arguably not been satisfactorily addressed by the ICC.25 It has also been submitted that UJ states may, at least on paper, provide more adequate protection than the ICC to victims, as strong victim protection legislation is already in place at the domestic level.26 Such UJ best practices may ultimately migrate “upwards” to the ICC.

Regular consultations between UJ national prosecutors and the ICC Prosecutor through, e.g., the International Association of Prosecutors or Eurojust, may enhance mutual learning and prevent the normative fragmentation of ICL. They may even lead to the joint development of standards and guidelines for the prosecution of international crimes.27 For instance, in September 2022, the ICC and Eurojust jointly presented guidelines for civil society on documenting international crimes.28 Going forward, consultations could focus on those issues that are most salient from an ICL fragmentation perspective, e.g., modes of liability,29 the prosecution of corporate actors,30 or the prosecution of foreign terrorist fighters involved in atrocity crimes.31

IV. Concluding Remarks

The ICC and UJ national authorities are partners, not competitors. Both pursue the objective of accountability for international crimes. Accordingly, cooperation and coordination between the ICC Prosecutor and UJ national authorities is called for. It is heartening to witness the deep collaboration between the ICC Prosecutor and the Eurojust Joint Investigation Team on Ukraine, including the ICC Prosecutor’s willingness to “seek to deepen [ICC] engagement with all actors in relation to the Ukraine situation,” albeit in a manner consistent with his mandate as Prosecutor.32 It is also encouraging to observe the joint adoption, by the ICC Prosecutor and Eurojust, of guidelines for civil society in documenting international crimes. It is hoped that such engagement is not a one-off, but could be repeated for other situations and topics, and also involve non-EU member states exercising universal jurisdiction.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   For an extensive discussion, see Luc Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Aug. 5, 2004), paywall, doi. ↩

2. 2.

   See also Máximo Langer & Mackenzie Eason, The Quiet Expansion of Universal Jurisdiction, 30 EJIL 779 (Aug. 1, 2019), paywall, doi. ↩

3. 3.

   Notably in EU member states, see EU Council Decision, 2003/335/JHA, On the Investigation and Prosecution of Genocide, Crimes Against Humanity and War Crimes, O.J. 118, Article 4 (May 8, 2003), available online,

   (“Member States shall consider the need to set up or designate specialist units within the competent law enforcement authorities with particular responsibility for investigating and, as appropriate, prosecuting the crimes in question.”). ↩

4. 4.

   Press Release, Eurojust, ICC Participates in Joint Investigation Team Supported by Eurojust on Alleged Core International Crimes in Ukraine (Apr. 25, 2022), available online. ↩

5. 5.

   Susann Aboueldahab & Fin-Jasper Langmack, Universal Jurisdiction Cases in Germany: A Closer Look at the Poster Child of International Criminal Justice, 31 Minn. J. Int’l L. 1 (2022), available online. ↩

6. 6.

   Karim Asad Ahmad Khan, ICC Prosecutor, Statement on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation (Mar. 2, 2022), available online; Julia Crawford & Thierry Cruvellier, Philip Grant: “Ukraine is Accelerating a Revival of Universal Jurisdiction”, Justice Info (Nov. 29, 2022), available online. ↩

7. 7.

   Mark Kersten, Universal Jurisdiction in Ukraine: States Should Commit to Using Their Own Courts to Address Russian Atrocities, Just. in Conflict (Oct. 17, 2022), available online

   (recognizing that both states and the ICC have jurisdiction over the Ukraine situation, and submitting that UJ “should be invoked help fill gaps, spread the responsibility for accountability more evenly among states, and set new precedents for inter-state cooperation in international criminal law”). ↩

8. 8.

   Máximo Langer, The Diplomacy of Universal Jurisdiction: the Political Branches and the Transnational Prosecution of International Crimes, 105 Am. J. Int’l L. 1 (2011), available online, earlier version, doi. ↩

9. 9.

   See Tim Kluwen, Universal Jurisdiction in Absentia Before Domestic Courts Prosecuting International Crimes: A Suitable Weapon to Fight Impunity?, 8 GoJIL 7 (2017), available online.

   (Most states require the presence of the presumed offender before investigations can be initiated. The exercise of universal jurisdiction in absentia is a rare occurrence and controversial at that). ↩

10. 10.

    Frédéric Mégret, The “Elephant in the Room” in Debates About Universal Jurisdiction: Diasporas, Duties of Hospitality, and the Constitution of the Political, 6 TLT 89, 111 (Jul. 2015), paywall, doi

    (“The exercise of UJ is the manifestation and perhaps the act of constitution of a community composed of both native-born and immigrant, of those whose lives have been unperturbed by mass crime and those whose lives have been defined by it.”).

    Yuna Han, Should German Courts Prosecute Syrian International Crimes? Revisiting the “Dual Foundation” Thesis, 36 Ethics & Int’l Aff. 37, 56 (Feb. 2022), paywall, doi

    (“Germany should administer UJ not only because it is acting on behalf of an amorphous international community but also because it allows the German state to enforce the rights of victims and recognize the status of refugees already within its territory as ontological subjects, giving them meaningful political agency in their new surroundings.”). ↩

11. 11.

    Jeremy A. Rabkin & Craig S. Lerner, Criminal Justice is Local: Why States Disregard Universal Jurisdiction for Human Rights Abuses, 55 Vand. J. Transnat’l L. 375, 431 (Jun. 2022), available online

    (skeptically observing, in respect of UJ, that “criminal justice remains stubbornly local in its aims and priorities”). ↩

12. 12.

    Office of the Prosecutor, ICC, Policy Paper on Preliminary Examinations (Nov. 2013), available online; Emeric Rogier, The Ethos of “Positive Complementarity”, EJIL Talk (Dec. 11, 2018), available online. ↩

13. 13.

    Valérie Paulet, The ICC & Universal Jurisdiction: Two Ways, One Fight, CICC (May 23, 2017), available online. ↩

14. 14.

    Press Release, Eurojust, ICC Participates in Joint Investigation Team Supported by Eurojust on Alleged Core International Crimes in Ukraine (Apr. 25, 2022), available online. ↩

15. 15.

    Karim Asad Ahmad Khan, ICC Prosecutor, Statement: Office of the Prosecutor Joins National Authorities in Joint Investigation Team on International Crimes Committed in Ukraine (Apr. 25, 2022), available online. ↩

16. 16.

    Julia Crawford, Ukraine, ICC and Eurojust: How Will That Work, Justice Info (May 5, 2022), available online. ↩

17. 17.

    David Bosco, The ICC’s Impact in Ukraine, Lawfare (Oct. 27, 2022), available online. ↩

18. 18.

    Crawford, supra note 16; see also Brianne McGonigle Leyh, Using Strategic Litigation and Universal Jurisdiction to Advance Accountability for Serious International Crimes, 16 IJTJ 363, 372 (Nov. 2022), available online, doi

    (discussing the risk of retraumatization and interview fatigue). ↩

19. 19.

    Michele Caianiello, The Role of the EU in the Investigation of Serious International Crimes Committed in Ukraine. Towards a New Model of Cooperation?, 30 Eur. J. Crim., Crim. L. & Crim. Just. 219 (2022), available online, doi. ↩

20. 20.

    Even disregarding the ICC’s participation in the JIT on Ukraine, horizontal cooperation between (European) UJ states regarding Ukraine boosts the chances of UJ success. Cf. Kersten, supra note 7

    (“those states can pool resources, intelligence, and evidence to make the exercise of universal jurisdiction more economical”).

    (Note that the above-mentioned al-Khatib UJ trial in Germany resulted from a joint investigation team involving Germany and France, which holds the “Caesar” files documenting the abuse of detainees in Syria).

    See Press Release, Eurojust, Syrian Official Sentenced to Life for Crimes Against Humanity With Support of Joint Investigation Team Assisted by Eurojust (Jan. 13, 2022), available online; see generally, Beth Van Schaack, National Courts Step Up: Syrian Cases Proceeding in Domestic Courts, in Imagining Justice for Syria, Chap. 7 (Beth Van Schaack, Nov. 30, 2020), paywall

    (discussing mutual legal assistance regarding Syrian cases proceeding in domestic courts). ↩

21. 21.

    E.g., International, Impartial, and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes Under International Law Committed in the Syrian Arab Republic Since March 2011 (IIIM), website available online; Independent Investigative Mechanism for Myanmar (IIMM), website available online; Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ ISIL (UNITAD), website available online; see Catherine Marchi-Uchel, Klatsky Endowed Lecture in Human Rights, 51 Case W. Res. J. Int’l L. 223, 224–25 (2019), available online.

    (These mechanisms conduct preparatory work “needed for accountability processes, regardless of what judicial avenues may emerge in the future.” Accordingly, they may “feed” both the ICC and UJ states). ↩

22. 22.

    Regulation (EU) 2022/838 of the European Parliament and of the Council amending Regulation (EU) 2018/1727, O.J. 148, new Article 4(1)(j) (May 30, 2022) (emphasis added), available online. ↩

23. 23.

    Karolina Aksamitowska, Asser Inst., War Crimes Units: Legislative, Organisational and Technical Lessons 16 (Sep. 2021), available online. ↩

24. 24.

    For a discussion of these problems, see Heidi R. Gilchrist, No Hiding from Justice: Universal Jurisdiction in Domestic Courts, 57 Tex. Int’l L.J. 215, 228–29 (2022), available online; see also Aboueldahab & Langmack, supra note 5. ↩

25. 25.

    Trial International, Universal Jurisdiction Annual Review 2022, 10 (Mar. 31, 2022), available online; for a more positive assessment of the trial, however, see Joachim J. Savelsberg & Miray Philips, Epistemic Power of Universal Jurisdiction: Spreading Knowledge about Mass Atrocity Crimes, 31 Minn. J. Int’l L. 57, 94 (2022), available online

    (“The trial awakened, or re-awakened, public awareness of the massive violations of human rights committed by the regime of President Bashar al-Assad.”). ↩

26. 26.

    Leyh, supra note 18, at 371. ↩

27. 27.

    Id. at 378

    (“[calling for the] adoption of special domestic international criminal procedural codes that would complement existing domestic criminal procedural codes.”). ↩

28. 28.

    Eurojust, Documenting International Crimes and Human Rights Violations for Criminal Accountability Purposes: Guidelines for Civil Society Organisations (Sep. 2022), available online. ↩

29. 29.

    The Rome Statute provides for modes of liability, such as complicity, but these are often already quite developed in domestic criminal law doctrine. For an inquiry, see Marina Aksenova, Complicity in International Criminal Law (May 30, 2019), paywall; for a case application of domestic accessorial liability doctrines to international crimes prosecutions before domestic courts, see Public Prosecutor v. Van Anraat, 07/10742, Judgment (Supreme Court of The Netherlands, Jun. 30, 2009), available online (dut.); Public Prosecutor v. Guus Kouwenhoven, 20/001906-10, Judgement (Court of Appeal in ’s-Hertogenbosch, Apr. 21, 2017), available online (trans.) ↩

30. 30.

    See, e.g., Sandra Cossart, Anna Kiefer, Cannelle Lavite & Claire Tixeire, Multinational Lafarge Facing Unprecedented Charges for International Crimes: Insights Into the French Court Decisions, Opinio Juris (Nov. 15, 2022), available online.

    (Pursuant to Article 25(1) of the Rome Statute, the ICC only has jurisdiction over natural persons. This provision extends to corporate officers, but not to corporations. The latter, however, may be held liable under domestic law, and some such prosecutions are currently underway). ↩

31. 31.

    See, e.g., Eurojust, Cumulative Prosecution of Foreign Terrorist Fighters for Core International Crimes and Terrorism-Related Offences (May 2020), available online, doi.

    (Terrorist fighters may be charged with violations of both domestic and international criminal law). ↩

32. 32.

    Khan, supra note 15. ↩

33. Suggested Citation for this Comment:

    Cedric Ryngaert, How, and to What Extent, Should the ICC’s Office of the Prosecutor Engage With National Authorities Exercising Universal Jurisdiction?, ICC Forum (Sep. 13, 2023), available at https://iccforum.com/decentralized-accountability#Ryngaert.

    Suggested Citation for this Issue Generally:

    How Should the ICC Support Decentralized Accountability for Those Accused of Grave Crimes?, ICC Forum (Sep. 13, 2023), available at https://iccforum.com/decentralized-accountability.

Argument Continued

A careful analysis of the ICC’s activity to date suggests that direct cooperation with national authorities in self-referrals and proprio motu cases may often be politically fraught, and may sometimes be non-existent, although positive exceptions, such as the ongoing relationship between Bangladesh authorities and the ICC OTP, can be found. Cooperation with national authorities in outside State referrals are more likely to be successful, but while some are enthusiastic in their welcome of the OTP, others are more reluctant partners. The Venezuela situation poses challenges to cooperation given the government’s objection to the ICC investigation and credible allegations of attacks on victims and witnesses. Ukraine is a positive exception, representing a paradigmatic case of robust cooperation between the OTP and the situation country as well as other States and regional organizations. As for Security Council referrals, although the Council’s Chapter VII powers have been invoked in those cases, cooperation has ranged from non-existent to challenging in the case of Sudan (with the exception of a short time after President Omar Al-Bashir’s arrest, and prior to the current political unrest), and while much better, somewhat grudging in the case of Libya.

Interestingly, the OTP’s most enthusiastic and willing partners will be found in non-situation countries that wish to assist the Court in a variety of ways or are conducting universal jurisdiction cases in their national systems. These partners may be intent upon working with the OTP to create a more effective global network of entities investigating and prosecuting international crimes. The ICC would indeed be a co-equal partner in this kind of cooperation, which is contemplated by Article 93(1) of the Rome Statute.

As regards international mechanisms, most will also be willing partners to the OTP, especially in situations such as Myanmar, which is already under the Court’s jurisdiction and the subject of (limited) investigations. The proposed Special Tribunal for the Crime of Aggression (STCoA) however, if not managed carefully, could be a source of friction or disappointment, and States supporting its establishment should be careful not to compromise the ICC’s independence, jurisdiction, or effectiveness, as well as be aware of the potential danger of a ne bis in idem challenge to action by the ICC if the STCoA moves forward in a case involving the same accused. Given that the ICC is already investigating the situation in Ukraine, it may be useful to wait and see how that investigation proceeds before establishing a new international court addressing the same situation, but different crimes.

Finally, in any cooperation efforts, the ICC Prosecutor must be mindful that independence and action “without fear or favour”, must be the hallmark of the Office for the Court to retain its legitimacy. Staying squarely within its statutory mandate will help to insulate the Office from accusations of favoritism, double standards, and selectivity which so often drive discourse about the ICC in the public domain.3

I. OTP Cooperation With National Authorities

The ICC Prosecutor may need to engage with national authorities in situation countries, meaning countries in which the crimes are being committed (i.e., Ugandan authorities in the investigation of the Lord’s Resistance Army (LRA) or Ukrainian authorities in the Ukraine situation) or with national authorities in non-situation countries, exercising their criminal jurisdiction extraterritorially, (i.e., searching for LRA members wanted by the Court in African states outside of Uganda, interviewing Sudanese refugees in camps outside of Sudan, or assisting in the prosecution of cases involving universal jurisdiction). Some national authorities may be located in ICC States Parties; others not (such as authorities in the United States).

A. Cooperation with National Authorities of ICC States Parties

The strongest legal framework for cooperation will inevitably be scenarios in which the Prosecutor is engaged with national authorities located in ICC States Parties. Article 86 of the Rome Statute imposes a general obligation of cooperation upon ICC States Parties, and Article 87(1)(a) allows the Court to make requests for cooperation to all States Parties; Article 89(1) also imposes an obligation on States Parties to comply, subject to the provisions of Part 9 of the Statute and national law, with a request for arrest and surrender of suspects. These formal obligations notwithstanding, engagement of the OTP with national authorities in both situation and non-situation countries presents both potential benefits and challenges.

1. In Situation Countries Involving Self-Referrals

With respect to national authorities in situation countries which have themselves reached out to the ICC for assistance in combatting the commission of Rome Statute crimes on their territories, it seems probable that national authorities would be eager to join with the Office in establishing:

[A] forum or platform with relevant national authorities through which a community of practitioners can be developed for the sharing of information and expertise between the Office and national authorities.4

After all, these are countries that have not only ratified the Statute, they have looked to the Court for help at a critical juncture. These countries currently include the Central African Republic, Côte d’Ivoire, Democratic Republic of the Congo, Mali, or Uganda.

At the same time, there is a risk involved in sharing evidence and supporting national systems if the government in-country is not dedicated to protecting and promoting human rights for all its citizens, or is itself complicit in the commission of ICC crimes or human rights abuses. When ICC Prosecutor Luis Moreno-Ocampo stood next to Ugandan President Yoweri Museveni and announced the opening of the situation involving the LRA in 2004, although his actions were viewed positively given the extensive crimes ongoing against civilians in Northern Uganda, some worried that the ICC had inappropriately cloaked allegations of serious crimes committed by Ugandan troops with a mantle of impunity.5 With relative peace prevailing in Northern Uganda today, as well as the successful prosecution of Dominic Ongwen by the Court,6 the decision to invite the Ugandan referral seems clearly to have been a positive development. Yet the nagging concern that the Ugandan government could be using the ICC to defeat its opponents and would never recognize that the Court’s jurisdiction applied to its own activities, continues today, as human rights groups point to increasing numbers of unlawful killings, disappearances, arbitrary arrest and torture, and other abuses by Ugandan security forces.7 As Kirsten Fisher has noted, the ICC needs to tread very carefully in self-referral cases to avoid reducing trust in the situation country, and ICC intervention has the capacity to reduce criminal activity in one area of the country while unfortunately permitting illiberal governments to increase their authority and attack their opponents.8

The Palestine situation is an interesting situation involving a declaration and self-referral;9 although the OTP could endeavor to deepen its cooperation with the Palestinian authority in the manner envisaged by the OTP Strategic Plan, it is difficult to imagine Israel doing so, and presumably some Israeli activity on the territory of the State of Palestine would be the subject of the ICC’s investigation, in addition to any investigation involving allegations of wrongdoing by Palestinians. Although positive complementarity could play a constructive role in that situation, as regards both Israeli authorities and the Palestinian authority, Israel, as a non-State Party, would have no obligation to cooperate, and as a political matter, seems unlikely to do so.10

Thus, in carrying out some of the activities proposed by the Prosecutor in enhancing national prosecutorial efforts, the OTP will need to ensure that evidence and technology transfers are not misused or weaponized by national authorities against political opponents; that resources are not misallocated by the situation country; and that ICC personnel are not themselves placed in potentially compromising positions in assisting with national prosecutions. Accepting secondments from a situation country11 opens the door to enhanced cooperation and knowledge transfer, but again, must be managed quite carefully to promote, rather than deter, the adoption of best practices in the national system.

2. In Other Situation Countries

Other situation countries in which the national authorities are ICC States Parties fall into two categories: Proprio motu cases, and State referrals.

i. Proprio Motu Referrals

In these situations, the territorial State is unlikely to be cooperating with the ICC, and in fact, that is what has transpired thus far. In the Kenya situation, the OTP received some modicum of cooperation, but ultimately was faced with such an extensive lack of cooperation, and even interference, that it was impossible to move forward with trials of the accused.12 Burundi and the Philippines have withdrawn from the Statute, making the idea of direct engagement with national authorities seem even more remote. Likewise, in the Bangladesh/Myanmar situation, as in the Palestine situation discussed above, while Bangladeshi authorities could very well benefit from the kinds of cooperation envisaged by the Strategic Plan, Myanmar authorities are unlikely to cooperate with the OTP in any way, having responded to the Rohingya’s allegations of deportation and other crimes as “meritless.”13 Prosecutor Khan has made two visits to Bangladesh both to meet with victims, and to engage in deepening cooperation between the Office and the government of Bangladesh.14

ii. State Party Referrals

As I have written elsewhere, these are the cases that were unexpected when the ICC was established in 1998.15 The conventional wisdom, at that point, was that it would be the Security Council that would refer (if at all), and that no State would be willing to refer another State to the Court, given the fact that no inter-state complaints had been opened before any international human rights bodies at that time. That was the basis on which pressure was placed on the negotiators at Rome to provide for a proprio motu referral system.16 As it turns out, both the Ukraine and the Venezuela situations have been referred by other ICC States Parties—in the Ukraine situation, by forty-three States with the active engagement and support of the government and the Prosecutor;17 in Venezuela I,18 by six States in 2018—Argentina, Canada, Colombia, Chile, Paraguay, and Peru. The Venezuelan government has tolerated the investigation by engaging with the OTP and not withdrawing from the Statute; however, Venezuelan civil society has reported repression and attacks, including murders and disappearances, with respect to individuals in country assisting with the ICC investigation.19

Unsurprisingly, the Venezuela situation has posed challenges to positive complementarity. In 2021, Prosecutor Khan opened a preliminary examination. On April 15, 2022, Venezuela asked the ICC to defer on the grounds that it was pursuing cases, however in November 2022 Prosecutor Khan sought authorization to resume the ICC investigation on the grounds that the government of Venezuela had “not adequately demonstrated, in accordance with Article 18(2), that it has investigated or is investigating its nationals or others within its jurisdiction” for ICC crimes.20 Pre-trial Chamber I granted the Prosecutor’s request, finding that virtually all of the 1875 submissions of views from the victims wanted the ICC investigation to continue21 and, based upon the information the Prosecution had provided Venezuela under Article 18 in terms of the likely scope of the OTP investigation, concluded that “Venezuela appears to admit that it is not investigating the factual allegations underlying the contextual elements of crimes against humanity.”22 Moreover, the few prosecutions that had occurred were of low-level, rather than high-level individuals, and there had been insufficient investigation of sexual and gender-based crimes. For those reasons, the Chamber found that the ICC investigation could proceed, subject to future admissibility challenges that Venezuela might bring.

Venezuela represents a case of grudging cooperation with the Court; it is engaging with the process, but given that victims are complaining of retaliation, blacklisting and publishing of personal information, surveillance and monitoring, stripping of citizenship, extortion and expropriation, and the use of extreme violence by the authorities, including sexual and gender-based crimes,23 it will be difficult for the OTP to engage with national authorities without potentially compromising its own investigation and the safety of victims and witnesses. As a recent Human Rights Watch essay noted, “[t]he ICC’s interactions with national systems are complex, but this cooperation is crucial to maintain accountability.”24

The most successful example of cooperation between the OTP, national, regional, and other authorities is the Ukraine situation. Indeed, the combination of the State’s eagerness for the investigation, the fact that the crimes have been committed by a State outside the Rome Statute system, and the fact that Ukraine is a member of the Council of Europe, has led not only to extensive support for Ukraine itself, but a deep and comprehensive engagement of Ukraine’s national authorities, regional authorities (Eurojust and Europol), and the establishment of an Atrocity Crimes Advisory Group (ACA) by the United States, the European Union, and the United Kingdom to help Ukrainian authorities investigate and prosecute war crimes,25 and extensive cooperation between the ICC, Ukraine, and the ACA, among others.

While concerns have been voiced about too many resources being devoted to the Ukraine situation at the ICC, there have been many fewer concerns about the OTP “standing with Ukraine” regarding the crimes being committed on its territory by Russian forces and mercenaries, or concerns about unwittingly assisting the Ukrainian government in the repression of its own people by engaging in cooperation. Instead, Ukraine is a paradigmatically successful example of the kind of strategic and operational cooperation that the Prosecutor’s 2023–2025 Strategic Plan envisages. It is, however, more likely to represent the exception than the rule.

B. Cooperation with National Authorities in Non-States Parties

1. In Situation Countries

Non-States Parties have no formal obligation to cooperate with the ICC unless a Security Council resolution adopted under Chapter VII requires them to do so. Article 87(5) however, allows the Court to invite “any State not party to the Statute” to provide assistance on the basis of an ad hoc arrangement with that State. The situation in Ukraine, of course, involves such an arrangement; as discussed in Part A above, it is more analogous to a situation in which OTP is seeking to cooperate with a State Party, given Ukraine’s Article 12(3) declarations, but, formally speaking, given that Ukraine is not a State Party, an ad hoc arrangement is required.

The other two non-State Party situation countries before the ICC currently are Sudan and Libya, both of which were referred by the Security Council to the ICC under Chapter VII of the U.N. Charter. While some cooperation has been evidenced by Sudanese authorities following the fall of former President Omar Al-Bashir’s government, including a promise to hand over the former President to the ICC, prior to that time, non-cooperation was the rule of the day, as President Al-Bashir himself traveled to dozens of countries (including to ICC States Parties) in spite of the two ICC arrest warrants that had been issued against him.26

Libya has, since the beginning of the ICC referral by the Security Council, engaged more consistently with the OTP, and in his latest report to the Security Council, Prosecutor Khan noted that the Office had carried out “20 missions, collecting over 500 items of evidence, including video and audio material, forensic information and satellite imagery,” as well as filed new arrest warrants.27 The Libyan government has often asserted admissibility challenges and was successful in the Al Senussi case,28 causing the ICC to stand down. That said, tensions have arisen between the government and the Court, particularly in the early days of the investigation during which time four members of the Court’s staff were detained for several weeks during a visit to Libya.29

2. Outside of Specific ICC Situations (Universal Jurisdiction)

As the Prosecutor’s Strategic Plan suggests, cooperation between the ICC and national authorities investigating ICC crimes may be highly effective. ICC situations will often generate significant refugee flows bringing both victims and perpetrators to third countries. Developing networks of cooperation to address those cases can be especially useful to the ICC and to national authorities. That said, the Court must employ firewalls to avoid compromising the security of its information. The Ukraine situation, which unites a situation country ready and willing to cooperate with both the ICC and outside jurisdictions, as well as regional and international criminal justice mechanisms, is a paradigmatic example of positive complementarity in action, and should be carefully studied as investigations and prosecutions progress so that best practices can be adopted, and lessons learned.

As regards atrocities occurring or that have occurred in countries not currently within the jurisdiction of the Court, such as Syria, the establishment of other international mechanisms to address those crimes means that the “hub” will be those entities as opposed to the ICC itself; at the same time, the ICC OTP will connect and coordinate with national authorities in appropriate circumstances. For those countries for which no international mechanisms are presently collecting information that could lead to investigations or prosecutions, the ICC OTP may have no formal role, but may nonetheless be aware of and open to cooperation as appropriate.

During the Kampala Review Conference for the Court, the idea of the ICC OTP engaging in assistance to other countries in developing their infrastructure relating to the investigation and prosecution of mass crimes was raised. It is clear that developing national capacity is critical to the success of the ICC’s complementarity regime given that the ICC is a Court of last, not first, resort.30 During the “stocktaking exercise” that occurred, general agreement was reached that it is States and civil society that would play the leading role in encouraging and assisting States in enacting national implementing legislation and investigating “serious international crimes committed on their territory or by their nationals.”31 This work would be facilitated by, but not conducted by, the ICC itself, so as not to deprive the Court—including the OTP—of resources that could otherwise be used to investigate and prosecute crimes. In the words of one delegate to the conference, the ICC should not function “as a development agency.”32

II. Cooperation With Specialized International Investigative Mechanisms and Tribunals

The OTP could be asked, or could be required to engage, with a specialized international criminal tribunal or investigative mechanism, as permitted by Article 87(6), such as the STCoA that has been proposed to address the gap in the ICC’s jurisdiction in that crime as regards the Ukraine situation, as well as the establishment of the European Union’s International Centre for the Prosecution of the Crime of Aggression (ICPCA) which began work in The Hague in July 2023,33 to collect data, interview witnesses, and build evidentiary files. The ICPCA is embedded in Eurojust which already maintains a Core International Crimes Evidence Database, is located in The Hague, and already cooperates with the ICC Prosecutor, meaning that it did not need to start “from scratch” in terms of organization and modalities.

Other situations, however, have required considerable time to staff up and become operational, for example, United Nations entities such as the International, Impartial and Independent Mechanism for Syria (IIIM), created in 2016 by the U.N. General Assembly to assist in the “investigation and prosecution of persons responsible for the most serious crimes” committed in Syria since March 2011,34 the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ ISIL (UNITAD), created by the Security Council in 2017,35 and the Independent Investigative Mechanism for Myanmar (IIMM), established by the Human Rights Council in 2018.36 These Mechanisms themselves have needs for external cooperation with States and regional and international authorities, just as the ICC will wish to coordinate and work with them both informally and formally to exchange information.

As noted above, the Ukraine situation is a paradigmatic case of ICC cooperation with external stakeholders. The possible creation of a STCoA, however, is one situation in which there is a need for cooperation and there is also the specter of possible competition and conflict between the ICC and any future STCoA. This is because the STCoA would likely be investigating and prosecuting the same individuals targeted by the ICC, including President Vladmir Putin and members of his cabinet and high command. Former U.S. Ambassador for War Crimes David Scheffer has suggested that it is more than possible—and even desirable—for the ICC and a future STCoA to exercise custody over the same individual and to try them for separate crimes.37 Others, however, have expressed doubts that the ne bis in idem provision of the Rome Statute in Article 20, may not permit the ICC to move forward on atrocities committed during a war after someone has been convicted for launching the war itself, especially given the characterization of aggression (by some) as a continuing crime. Others have argued that the “conduct” bar is narrower and permits trial before both jurisdictions. Obviously, a careful agreement on cooperation would need to be negotiated; and evidence, witnesses, and victims would need to be protected as well as shared.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Office of the Prosecutor, ICC, Strategic Plan 2023–2025 (Jun. 13, 2023) [hereinafter Strategic Plan], available online. ↩

2. 2.

   Id. ¶ 33. ↩

3. 3.

   Darryl Robinson, Inescapable Dyads: Why the International Criminal Court Cannot Win, 28 Leiden J. Int’l L. 323 (Jun. 2015), available online, doi. ↩

4. 4.

   Id. ¶ 35. ↩

5. 5.

   Human Rights Watch, ICC: Investigate all Sides in Uganda (Feb. 4, 2004), available online. ↩

6. 6.

   Press Release, ICC, Ongwen Case: ICC Appeals Chamber Confirms the Conviction and Sentencing Decisions (Dec. 15, 2022), available online. ↩

7. 7.

   Press Release, Amnesty Int’l, Uganda: Museveni’s Latest Government Must Reverse Decline on Human Rights (May 12, 2021), available online. ↩

8. 8.

   Kirsten J. Fisher, International Criminal ‘Lawfare’ and its Potential Effects on Post-Conflict Positive Peace, 19 Int’l Crim. L. Rev. 724 (2019), paywall, doi. ↩

9. 9.

   Fatou Bensouda, ICC Prosecutor, Statement Respecting an Investigation of the Situation in Palestine (Mar. 3, 2021), available online. ↩

10. 10.

    Press Release, Ministry of Foreign Affairs (Israel), The International Criminal Court’s Lack of Jurisdiction Over the So-Called “Situation in Palestine” (Dec. 20, 2019), available online;

    (Israel has protested the ICC’s decision to accept the referral as “undiluted antisemitism” and “morally and legally bankrupt”);

    Peter Beaumont, ICC Opens Investigation Into War Crimes in Palestinian Territories, The Guardian, Mar. 3, 2021, available online

    (quoting Israeli Prime Minister Benjamin Netanyahu). ↩

11. 11.

    Strategic Plan, supra note 1, ¶ 41. ↩

12. 12.

    Fatou Bensouda, ICC Prosecutor, Statement on the Status of the Government of Kenya’s Cooperation With the Prosecution’s Investigations in the Kenyatta Case (Dec. 4, 2014), available online; The Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-02/11, Decision on the withdrawal of charges against Mr Kenyatta (TC V(B), Mar. 13, 2015), available online.

    (For example, the ICC Prosecutor withdrew the charges in the case against Mr Kenyatta, citing the non-cooperation of the Kenyan government with the proceedings in its application. The case was subsequently terminated without prejudice). ↩

13. 13.

    Myanmar to ICC: Rohingya Jurisdiction Request “Should Be Dismissed”, Reuters, Aug. 9, 2018, available online. ↩

14. 14.

    Karim Asad Ahmad Khan, ICC Prosecutor, Statement on Concluding Second Visit to Bangladesh: “The Rohingya Must Not Be Forgotten. Together, We Can Deliver on Their Legitimate Expectations of Justice.” (Jul. 10, 2023), available online. ↩

15. 15.

    Leila Nadya Sadat, The International Criminal Court of the Future, in The International Criminal Court at 20: Reflections on the Past, Present and the Future (Carsten Stahn ed., forthcoming 2023), earlier version available online. ↩

16. 16.

    Id. ↩

17. 17.

    Situation in Ukraine, ICC, available online (last visited Sep. 4, 2023).

    (An investigation was opened March 2, 2022). ↩

18. 18.

    Fatou Bensouda, ICC Prosecutor, OTP 2018/025974, Memorandum re Notification: Referral From a Group of Six States Parties Pursuant to Article 14(1) of the Rome Statute Regarding the Situation in Venezuela (Sep. 27, 2018), available online. ↩

19. 19.

    Situation in the Bolivarian Republic of Venezuela, ICC-02/18-40-AnxI-Red, Final Consolidated Registry Report on Article 18(2) Victims’ Views and Concerns Pursuant to Pre-Trial Chamber’s Order ICC-02/18-21, 6 (Apr. 20, 2023) [hereinafter Victims’ Views], available online; Situation in the Bolivarian Republic of Venezuela, ICC-02/18, Prosecution request to resume the investigation in the Bolivarian Republic of Venezuela I pursuant to article 18(2), ¶ 19 (PTC I, Nov. 1, 2022) [hereinafter Request to Resume Investigation], available online. ↩

20. 20.

    Request to Resume Investigation, supra note 19, ¶ 3. ↩

21. 21.

    Id. ¶ 18.

    (Only four potential victims demurred, citing concern for their safety). ↩

22. 22.

    Id. ¶ 104. ↩

23. 23.

    Victims’ Views, supra note 19, at 42 et seq.; Request to Resume Investigation, supra note 19, ¶ 19. ↩

24. 24.

    Tamara Taraciuk Broner, In Venezuela, a Delicate Balance for the ICC, Am. Q., Dec. 8, 2022, available online. ↩

25. 25.

    Ukraine Advisory Group (ACA), U.S. Dept. of State, available online (last visited Sep. 4, 2023). ↩

26. 26.

    Alexa Koenig, Victor Peskin & Eric Stover, Arrest Bashir: How the Sudanese Leader is Getting Away with Murder, Foreign Aff. (Jul. 13, 2016), paywall. ↩

27. 27.

    Press Release, S.C., SC/15280, ‘Cause for Optimism’ in Delivering Justice to Libyan People, International Criminal Court Prosecutor Tells Security Council, Citing Progress in Past Six Months (May 11, 2023), available online. ↩

28. 28.

    The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11/-01/11 OA 6, Judgment on the appeal of Mr. Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled “Decision on the admissibility of the case against Abdullah Al-Senussi” (AC, Jul. 24, 2014), available online. ↩

29. 29.

    Press Release, ICC, Four ICC Staff Members Detained in Libya; Immediate Release Requested (Jun. 9, 2021), available online; Hadeel Al Shalchi, Libya Frees Detained ICC Staff After Apology, Reuters, Jul. 2, 2012, available online.

    (They were released in July 2012). ↩

30. 30.

    Morten Bergsmo, Olympia Bekou & Annika Jones, Complementarity after Kampala: Capacity Building and the ICC’s Legal Tools, 2 GoJIL 791 (2010), available online. ↩

31. 31.

    Id. at 802. ↩

32. 32.

    Kampala Review Conference, Author’s Notes (2010); see also Hans-Peter Kaul, Kampala June 2010—A First Review of the ICC Review Conference, 2 GoJIL 649, 655 (2010), available online.

    (“[T]he ICC is not an organization which provides development aid.”). ↩

33. 33.

    International Centre for the Prosecution of the Crime of Aggression against Ukraine, Eurojust, available online (last visited Sep. 4, 2023). ↩

34. 34.

    G.A. Res. 71/248, U.N. Doc. A/71/248, International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (Dec. 16, 2016), available online (adopted by a vote of 105 for, 15 against, with 52 abstentions); IIIM, available online (last visited Sep. 4, 2023). ↩

35. 35.

    S.C. Res. 2379, U.N. Doc. S/RES/2379 (Sep. 21, 2017), available online (adopted unanimously); UNITAD, available online (last visited Sep. 4, 2023). ↩

36. 36.

    UNHRC Res. 39/2, U.N. Doc. A/HRC/RES/39/2, Situation of human rights of Rohingya Muslims and other minorities in Myanmar (Sep. 27, 2018), available online; IIMM, available online (last visited Sep. 4, 2023). ↩

37. 37.

    David Scheffer, Forging a Cooperative Relationship Between International Criminal Court and a Special Tribunal for Aggression Against Ukraine, Just Security (Oct. 25, 2022), available online. ↩

38. Suggested Citation for this Comment:

    Leila Nadya Sadat, The Promise and Perils of the ICC Prosecutor’s Engagement with External Stakeholders, ICC Forum (Sep. 13, 2023), available at https://iccforum.com/decentralized-accountability#Sadat.

    Suggested Citation for this Issue Generally:

    How Should the ICC Support Decentralized Accountability for Those Accused of Grave Crimes?, ICC Forum (Sep. 13, 2023), available at https://iccforum.com/decentralized-accountability.