The Anniversary Question — Comments

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Comment on the Anniversary Question: “In the Rome Statute’s third decade, what key reforms could make the international criminal justice project stronger, more efficient, and more effective?”

Ten Years Hence

I. Introduction

Over the next ten years, the central battle for the International Criminal Court will be the battle for legitimacy. An institution is considered legitimate:

[W]hen it is perceived as having the right or the authority to make decisions and when its decisions are viewed as worthy of respect or obedience.1

Unless a court possesses its own army, legitimacy is what gives a court its power. The ICC has no military force. It has no power to enforce its own actions and rulings. It is entirely reliant on the willing cooperation of states (members and non-members alike) for everything from the financing of the day-to-day operation of the ICC to the use of force to capture and imprison indicted criminals. Moreover, legitimacy allows the court to make decisions contrary to the perceived immediate interests of its constituents (such as initiating an investigation within their territory, indicting their citizens, or a plethora of other inflammatory actions). The power granted to the ICC by legitimacy is absolutely necessary for its effectiveness.2

This comment will argue that legitimacy depends on keeping court action within the political constraints that prevail upon the organization. It will examine the United States Supreme Court, the Court of Justice of the European Union (CJEU), and the World Trade Organization (WTO) Appellate Body, and their practices in considering their respective political constraints when taking action. Finally, we will examine potential courses of action the ICC might adopt to attempt to remain within its own political constraints.

II. The Necessity of Political Calculation

The legitimacy of a court rides on the belief of its constituents that the court has the right to exercise its authority in a certain domain.3 The legitimate domain of a court is set by a system of three boundaries: 1) legal discourse; 2) constitutional rules; and 3) politics. These boundaries are nested: constitutional rules limit the boundaries of legal discourse; and politics limit the boundaries of the other two.4 A court is limited in its action by its method of legal discourse. If it is interpretive and elastic (such as the US Supreme Court or the WTO Appellate Body), then it has wide latitude in its decisions. But, regardless of its method of legal discourse, the scope of action is constrained by the constitutional rules of the court. Moreover, regardless of the constitutional rules, the courts breadth of action will be limited by political reality. Therefore politics, must be a consideration of any court.

III. Case Studies

In an effort to further understand what it looks like to operate within political limitations, we will examine the United States Supreme Court and the WTO Appellate Body. Each of these judicial systems have wide latitude in action under the limitations of legal discourse and constitutional rules. However, each is still constrained by politics.

A. United States Supreme Court

1. Powerful Court

The US Supreme Court is widely regarded as one of the world’s most powerful judicial bodies. Through the seminal case, Marshall v. Madison, it acquired a wide degree of latitude for its action.5 It can strike down laws passed by the legislative branch or actions of the executive branch as unconstitutional, allowing it to limit the other branches of government. Over time, it has accumulated enormous legitimacy—particularly when compared to international courts. Where the ICC is dependent on the good will of sovereign states to give it effect, the US Supreme Court’s legitimacy allows the benefit of reliable enforcement by the other branches of the United States government. This is partly due to the right of the United States to effectively propitiate its state sovereignty while the ICC is an international judiciary body. Despite the power and legitimacy the Supreme Court enjoys, it still makes political considerations in its decisions and its regulated by the other branches of power.6

2. Political Limitations

The Supreme Court is primarily limited politically by the danger of reprisal or punishment from the other political branches of the US government. The Supreme Court must be strategic in its decisions to either establish new doctrine or to defend established doctrine against political ill will, else it face such reprisal or punishment. An instance in which the influence of politics on the Supreme Court was most clear was the famous “switch in time to save nine.”7

The Supreme Court frustrated Franklin Roosevelt’s plans for the creation of economic stimuli during the Great Depression—striking down several laws as unconstitutional in a series of split decisions. In the presidential elections of 1936, Franklin Roosevelt was reelected by a landslide, carrying on his coattails a two-thirds majority of both Houses of Congress, and nearly three fourths of the state legislatures. The following year, the Roosevelt administration proposed the Judicial Procedures Bill of 1937, which would have allowed the President to appoint an additional Supreme Court Justice for each Justice who reached 70 years of age without retiring. This would have allowed the President to appoint enough Justices of his own choosing to shift the balance of the Court, perpetuating party biases within the court system.8

Within a few weeks of Roosevelt’s “court packing” proposal, the Supreme Court issued its opinion in West Coast Hotel Co. v. Parrish.9 In a 5–4 decision, the Court upheld a Washington State minimum wage law—the sort of governmental economic intervention that had been struck down in the previous decisions. Justice Owen Roberts (the swing vote on the bench) suddenly began to vote in favor of Roosevelt polices as they appeared in front of the Court. This action, likely based on consideration of the political circumstance by at least one member of the Court, protected the court from a significant blow to its legitimacy.10

3. Culmination of Legitimacy

Decisions protecting the legitimacy of the Supreme Court by taking into account political limitations have led to a court trusted with power by its constituents. The acid test of legitimacy is whether or not people obey the courts decisions even though they disagree with its decisions. The United States had this put to the test in the Bush/Gore election of 2000. The vote was close. Al Gore received the most popular votes. But, under the Electoral College system, the result depended on which candidate won the state of Florida. In Florida, fewer than 1000 votes separated the candidates. Chaos reigned. Some counties started a recount. Others did not. The Supreme Court stepped in, and ruled that Bush had won.11 Al Gore, and the people of the US accepted the court’s decision. The American public trusted the legitimacy of the Supreme Court in a hastily made decision, that determined the next President of the United States. Moreover, the case was close and years after, many questioned the lawfulness of the outcome.12 This shows the legitimacy that the United States Supreme Court has been able to build. This was possible through the careful consideration of political boundaries to the Courts action, and the Court limiting its action accordingly.

B. The Court of Justice of the European Union

1. Openness for Growth

The Court of Justice of the European Union has proven to be self-expansionist. Through a series of decisions, it has used its legal discourse to expand its own power. Where once its judgements were binding only under international law, it has expanded its power, through its own rulings, so that its decisions are directly enforceable in cases filed by private litigants in the domestic courts of the member states of the European Union. Other examples of the CJEU’s self-innovation included powers for supranational law making and the development of human rights jurisprudence. These doctrinal innovations were justified on the basis of the language of the law by the CJEU.13 However, such aggressive expansion comes with the possible backlash from different constituents.

2. Political Limitations

The Court of Justice of the European Union’s aggressive expansion of its own power has not been without challenges to the court’s legitimacy. Legitimacy concerns inevitably arise when international courts extend their mandates beyond the unambiguous provisions provided by the constitutional rules. The CJEU in its decisions has to be worried about the backlash of its constituent governments. As it grew its position, it had to be worried that its self-assigned power would not be affirmed by the member states of the European Union. There have indeed been a range of backlashes against some particular expansions of existing doctrines. To this end, the CJEU took steps which carefully considered political boundaries in advancing its agenda. For example, the CJEU carefully nurtured its relationships with its constituents to cultivate deeper relationships and gain influence. CJEU judges and members of its secretariat would regularly participate in events along with scholars and practitioners of E.U. law. Additionally, the court invited national judges to its home turf in Luxemburg, to discuss European legal issues while sharing fine dining. Outreach efforts like these were designed to garner information to allow the court better understand its political boundaries, as well as extend those boundaries by building relationships with legal practitioners within its jurisdiction. Furthermore, the CJEU made additional attempts to ascertain the political will of its constituents, for example, using the EU Commission as a bellwether by watching its positon on important cases as a sign of where the political boundaries lay.14

3. Evidence of Success

Despite potential concerns, European Union member states have repeatedly validated the CJEU by expanding the court’s jurisdiction. In 1998 member states created the Tribunal of First Instance. In 1993, member states authorized the CJEU to levy financial sanctions for noncompliance with CJEU rulings. Finally, in the 2009 Lisbon Treaty, member states granted the court jurisdiction of certain domestic issues. These expansions display the successfulness of the CJEU as an international judicial body and qualify member states’ contentment with its decisions and policies.

IV. World Trade Organization Appellate Body

The legitimacy of the WTO Appellate Body is often attacked on the grounds of judicial activism. These complaints generally center on the proposition that judicial law making has shifted the rights and responsibilities of lawmaking in the WTO from trade negotiations, to the dispute resolution body. This judicial lawmaking is permissible under the WTO agreements.15

A. Capacity for Activism

The WTO dispute settlement system was originally conceived for the purposes of enforcing the substantive rules being established through negotiations of the WTO agreements between member states. As the years have passed, judicial lawmaking in the WTO dispute settlement system has become more expansive than originally expected. This has been magnified by a higher volume of cases than expected. However, this is not prohibited by the WTO agreements. The constitutional rules of the WTO give significant leeway to the Appellate Body to make law. Furthermore, the legal discourse of the Appellate Body is interpretive, and not just the simple application of rules. The elastic and interpretive nature of its legal discourse either permits the Appellate Body to be politically functional or permits dysfunctional judicial lawmaking.16 This is clear in the interpretive nature of the Appellate Body and the lack of definitive discourse. Therefore, it is difficult to discern whether or not the Body is actively efficient in its intended purposes of dispute settlement.

B. The World Trade Organization’s Political Limitation

However, the Appellate Body is subject to political limitations as well. Powerful members of the WTO (such as the US) have the ability to select Appellate Body candidates. Additionally, the Appellate Body always faces the possibility of the defiance of powerful members.17 Realizing the necessity of avoiding political pitfalls, the Appellate Body deliberately seeks information of the preferences of powerful members.18 A political pitfall could result in these occurrences, and it appears that is exactly what has happened.

C. Appellate Body De-legitimization

Political tensions have risen in the WTO in recent years. The Peoples’ Republic of China (China) has become an increasingly large player in the multilateral trade system and its economic system has caused systems friction with many of its trading partners—the United States in particular. The US maintains that certain aspects of the Chinese economic system are inherently unfair and harming its industries. China smarts at the massive tariffs that the United States imposes on Chinese imports in reprisal. This has resulted contentious litigation over key issues of law, requiring interpretation, with billions of dollars in trade flows hanging in the balance.19

The WTO Appellate Body is stuck right in the middle. It has already been called upon to make interpretive decisions where, inevitably, one of the largest and most powerful economies in the world will chafe at the outcome. The Appellate Body, in a recent decision, struck down US tariffs established to protect against what the US saw as unfair trading practices by China.20 Rulings like these break through the political boundaries constraining the WTO judiciary. The United States, after suffering defeat, does not trust the legitimacy of the Appellate Body or the World Trade Organization. As a result, the WTO is suffering from some of the possible political ramifications already asserted. The United States has initiated a policy of blocking all judicial appointments to the Appellate Body. Furthermore, it has threatened to withdraw from the WTO entirely.21 The United States, once the biggest proponent of the WTO, has become hostile because of the dispute settlement system’s failure to act within its political limitations.

V. Measures to Ascertain Political Boundaries

To ensure that a court remains with the boundaries of its political situation, it must understand the political concerns of its constituents. The CJEU is an excellent example of success in that area and consequently a highlighted case study in this comment. The CJEU made a particular effort to engage with its constituents. It virtually lobbied them for their approval through personal interaction and fine dining. This has the added benefit of providing up to date information on the prevailing political boundaries. This allows the court to adjust its actions to remain within these boundaries.22 Such measures will be necessary for the ICC to engage in and emulate based upon the system that The European Court of Justice operates within.

VI. Conclusion

As stated throughout this comment, it is apparent that Courts are controlled to an extent by the power allocated to them politically. I have used the US Supreme Court and the WTO Appellate Body as case studies qualifying the salience of legitimacy in the effectiveness of a court system. As a result, the ICC should consider the political implications of its actions. As an international judiciary body, it has a larger number of constituents to consider. Additionally, ICC has the capacity to be a powerful governing body. However, overstepping its political boundaries will result in a loss of legitimacy—legitimacy which is absolutely necessary for its effectiveness. To this effect, the ICC should ascertain its political boundaries by collecting information on the political concerns of its constituents. Moreover, it should exercise caution in its actions to stay within those boundaries to avoid a loss of legitimacy. Even if such action would be permissible by constitutional rules, the ICC needs to limit its actions to its perceived political boundaries to cultivate legitimacy, and thereby enhance its position to a trustworthy body.

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

  1. 1.

    James L. Gibson, Delmar Karlen & Brian P. Smentkowski, Court, Encyclo. Britannica, available online (last visited Jun. 15, 2018).

  2. 2.

    See Gregory A. Caldeira & James L. Gibson, The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support, 89 Am. Pol. Sci. Rev. 356 (Jun. 1995), paywall, doi.

  3. 3.

    Erik Voeten, Public Opinion and the Legitimacy of International Courts, 14 TIL 411 (2013), available online.

  4. 4.

    See Richard H. Steinberg, Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 Am. J. Int’l L. 247 (Apr. 2004), available online, paywall, doi.

  5. 5.

    Marbury v. Madison, 5 U.S. 137 (1803), available online.

  6. 6.

    See Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. Cal. L. Rev. 1631 (1994), available online.

  7. 7.

    Id.

  8. 8.

    Id.

  9. 9.

    West Coast Hotel Co. v. Parrish, 300 U.S. 379 (Mar. 29, 1937), available online.

  10. 10.

    Daniel E. Ho & Kevin M. Quinn, Did a Switch in Time Save Nine?, 2 J. Legal Analysis 69 (2010), available online.

  11. 11.

    Bush et al. v. Gore et al., 531 U.S. 98 (Dec. 12, 2000), available online.

  12. 12.

    See Lawrence H. Tribe, The Unbearable Wrongness of Bush v. Gore, 19 Const. Comment. 571 (2003); see also Peter Berkowitz & Benjamin Wittes, The Lawfulness of the Election Decision: A Reply to Professor Tribe, 49 Vill. L. Rev. 101 (2004), available online.

  13. 13.

    See Laurence R. Helfer & Karen J. Alter, Legitimacy and Lawmaking: A Tale of Three International Courts, 14 TIL 479 (2013), available online.

  14. 14.

    Id.

  15. 15.

    See Steinberg, supra note 4.

  16. 16.

    Id.

  17. 17.

    Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 56 Harv. Int’l L.J. 261 (2016), available online.

    (An additional political ramification could be the re-negotiation of the WTO agreement governing the dispute settlement body, but the political situation amongst WTO members is such that it is unlikely that the necessary consensus could be reached unless the Appellate Body’s political error was practically cataclysmic).

  18. 18.

    See Steinberg, supra note 4.

  19. 19.

    See Wu, supra note 17.

  20. 20.

    e.g. United States—Certain Methodologies and their Application to Anti-Dumping Proceedings Involving China, WTO Doc. WT/DS471/AB/R (adopted May 22, 2017), available online.

  21. 21.

    Ana Swanson, Once the W.T.O.’s Biggest Supporter, U.S. is its Biggest Skeptic, N.Y. Times, Dec. 10, 2017, available online.

  22. 22.

    See Helfer & Alter, supra note 13.

Lessons for the Future: Taking Proactive Complementarity Seriously

As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.1

The International Criminal Court (ICC) was created as a permanent institution with the explicit goal to end impunity for core international crimes.2 Unfortunately, twenty years from its creation, the ICC has struggled with limited jurisdiction, restrained budgets, and non-existent enforcement powers.3 With a maximum of two trials per year, the Court cannot hope to end impunity or even make a significant step towards that goal.4 The ICC has currently issued judgments in only six cases, convicting nine people.5 When considering the future prospects of the Court, a change of policy is needed. Instead of increasing caseload through new prosecutorial strategies, the ICC should focus on positive complementarity regimes and utilize existing resources to construct dossiers for domestic prosecution uses.

I. The Existing Regime

The Office of the Prosecutor (OTP) is currently able to open investigations in three instances. Article 13(a) gives the Court the power to exercise jurisdiction in situations initiated by the Prosecutor. However, these investigations may only continue with authorization from the Pre-Trial Chamber.6 The OTP can also begin investigations following United Nations Security Council (UNSC) referrals and referrals by State Parties.7

Yet, the Rome Statute does not establish primacy for the ICC, which had been the case for previous international tribunals (namely, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda).8 The Rome Statute was instead written in such a way to allow State Parties to maintain as much sovereignty as possible in order to encourage ratification.9 Thus, while the OTP has the means to open investigations, it does not necessarily have the right to do so.

Article 1 of the Rome Statute asserts that the Court “shall be complementary to national criminal jurisdictions.”10 Article 17 further elaborates on this complementarity principle by providing guidelines to the OTP when making determinations on admissibility. The Court should find that cases are inadmissible when:

  1. The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

  2. The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

  3. The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

  4. The case is not of sufficient gravity to justify further action by the Court.11

Therefore, Article 17(1) poses strict limitations on the Court for when investigations can be opened. Arguably, the proprio motu power should only be utilized when State Parties either have no intention to prosecute or are unwilling and/or unable to do so.

Whether or not a State Party is unwilling is determined by Article 17(2). Unwillingness will exist in three circumstances. First, the proceedings are undertaken in a manner that effectively shields the defendant from criminal responsibility.12 Secondly, proceedings are delayed to the extent that the defendant is not brought to justice.13 Finally, the proceedings are not “conducted independently or impartially” and are done in a manner “inconsistent with an intent to bring the person concerned to justice.”14

Inability amounts to a “total or substantial collapse” of the judiciary system.15 Additional factors include whether or not the State Party is able to gather sufficient testimony or evidence against the accused and whether proceedings can be carried out at all.16

The current complementarity regime bases admissibility entirely on the willingness and ability of the State to prosecute. This passive complementarity should only enable the Court to step in when a State Party fails to prosecute and the Court has jurisdiction over the alleged crime—which admittedly should only apply in limited instances.17

Unfortunately, the complementarity regime has not worked in practice. State Parties have sought to shift the costs associated with international criminal prosecutions almost entirely to the ICC.18 State Parties may now choose to decline to initiate any investigation or prosecution—going so far as to self-refer situations to the Court without suffering any political cost.

A. Problems with the Existing Regime: A Case Study on Uganda

In 2004, Ugandan President Museveni referred the crimes committed by the Lord’s Resistance Army (LRA) to the Court.19 He claimed that the Government was not able to locate and apprehend all LRA suspects, since some had taken refuge in neighboring countries.20

Interestingly, Museveni was likely in a better position to apprehend suspects than the ICC, who has no enforcement power to fulfill its arrest warrants.21 The President may have made use of national institutions (such as the Ugandan military) or simply cooperated with neighboring Governments to apprehend and extradite suspects.22

However, domestic prosecutions may have proven costly to the Government since they were involved in negotiations with the LRA at the time.23 Museveni also faced potential public disapproval if domestic prosecution went ahead since victims encouraged forgiveness and reconciliation processes as a means of achieving quicker peace.24 As a result of the self-referral, President Museveni was able to avoid domestic political costs while receiving international recognition for his effort at ending impunity and fulfilling Uganda’s mandate to the Rome Statute.25 By contrast, the ICC has faced criticism over the inability to fulfill all outstanding arrest warrants against LRA members.26

II. If Complementarity is Ignored, Why Keep It?

Despite the existence of a high threshold as regards “unwillingness” and “inability” criteria, the ICC has taken a lenient approach to these admissibility requirements (as seen in the above example regarding the situation in Uganda). Since complementarity is not followed to the letter of the Statute, it is important to examine why the principle should be kept.

The complementarity principle makes sense from a financial perspective since it will typically be less costly to conduct investigations and prosecutions in the jurisdictions where the crime has been committed.27 From a practical perspective, the evidence and potential witnesses are already present. When the ICC chooses to prosecute a case, resources need to be spent to bring any evidence and witnesses to The Hague (and to keep them there for the duration of the trial). National proceedings will also be held in the language of the country—thereby reducing the need for any translators.28

However, the principle is not only important for practical considerations—it also promotes the rule of law. Core international crimes tend to take place where there are vacuums of authority and law. National prosecutions help accomplish transitional justice goals by trying those persons accountable for previous international crimes. Domestic judiciaries can thereby reestablish the rule of law through prosecution.29

The complementarity principle also enables State Parties to utilize domestic legal traditions.30 For example, if the State Party adopts Sharia law or makes use of jury systems, then the ICC may not be the best choice for prosecution. Domestic courts may instead utilize their preferred domestic justice mechanisms. For example, while not ending in criminal punishment, truth commissions have been used at various times by State Parties (of particular note is the use of truth commissions by South Africa for the apartheid regime).31

Finally, States would have been reluctant to adopt the Rome Statute if primacy for prosecution was not guaranteed as this would have amounted to a not-so-insignificant infringement on sovereignty.32 This would likely be an inhibiting factor for future adoption of the Statute now if complementarity were abandoned. The adoption of the Rome Statute will be crucial to ending impunity for the future commission of atrocity crimes—thereby making the complementarity principle vital to the effectiveness of the Rome Statute.

III. How to Make Complementarity Work in the Future

Despite not being utilized as envisioned, the complementarity regime is a cornerstone to the Rome Statute. It serves as a means to ensure that State Parties and the ICC alike fulfill their mandate to end impunity for the core international crimes. However, the passive complementarity regime as it currently stands must change. The Court will be unable to continue shouldering the burden for criminal prosecutions given their stringent financial and practical resources.

The future of the ICC should not be measured by how many criminal prosecutions it conducts but, instead, by its efforts to facilitate national prosecutions.33 The OTP should focus efforts on moving from a passive complementarity policy to one of proactive complementarity. This would require the Court to actively encourage and provide help to national governments in prosecuting core international crime.34

In a Resolution at the Kampala Review Conference, the Assembly of State Parties stressed the need to build upon national capability:

The Review Conference […] encourages the Court […] to further explore ways in which to enhance the capacity of national jurisdictions to investigate and prosecute serious crimes of international concern.35

The OTP has taken some steps to facilitate such national capacity-building. For example, the OTP has made Legal Tools available for use in domestic prosecutions. This project offers domestic prosecutors a means to develop legal knowledge on the substantive criminal elements of the core crimes.36 The Legal Tools project helps build national capacity in terms of the legal knowledge needed in order to effectively prosecute crimes against humanity, war crimes, and genocide. However, this will not suffice to best place domestic courts in their prosecution of alleged criminals. Complementing the Legal Tools mechanism, the OTP should also adopt a strategy that would enable countries to more easily prosecute from a practical evidentiary standpoint.

A. Prosecution Dossiers

The OTP does not limit its activities to the prosecution of alleged criminals. Instead, substantial resources must go into evidence-gathering and case-building. Instead of utilizing this gathered information for eventual international prosecution, the Prosecutor should instead make this information available to domestic prosecutors for use in national proceedings. This would have the effect of eliminating the Article 17(1) admissibility requirement of “inability” from an evidentiary standpoint. With the use of such prosecution dossiers, national jurisdictions will be better placed to conduct necessary criminal prosecutions.

The prosecution dossiers would essentially constitute a fact-sheet, comprising all the information gathered by the Court up to that point. This would include all evidence collected and lists of potential witnesses. Initially, the OTP would create prosecution dossiers to focus attention predominantly on low-hanging fruit. This would comprise information gathered, over the course of the OTP investigation, on individuals that the ICC would normally not prosecute. The Court would then utilize the information gathered to conduct prosecutions on those individuals most responsible, whilst allowing domestic jurisdictions to prosecute those lesser culpable individuals. Over time, the Court will provide State Parties with prosecution dossiers for both low-hanging fruit and those believed most culpable for core international crimes. The ICC would then transition to prosecuting those cases that would otherwise be neglected by domestic jurisdictions (or are referred by the UNSC).

The use of a dossier system would be beneficial for both the Court and State Parties. The ICC only has limited resources to prosecute everyone deemed culpable for the most egregious crimes. Currently, the Court has taken the position that it will prosecute those persons most responsible. This is a very limited understanding of their mandate “to end impunity.”37 Not only would the dossiers save the Court time and money by avoiding an international trial, but it would also ensure that persons (other than commanders) are held criminally liable.

A State Party that had the willingness to prosecute international crime may not have had the means due to limited investigative ability. Those State Parties that did not have the technical means to gather and store evidence could thereby benefit from the Court’s resources. It would also encourage adherence to the Rome Statute, by ensuring that the primacy of domestic prosecutions is respected.

The OTP would only begin prosecution once it has become clear that there would be no attempt by the State Party to prosecute. Therefore, if and only if a State Party refuses to act on the prosecution dossier provided, would the Court begin proceedings. The ICC would actually become a “Court of Last Resort” in this instance.38

The system will be a significant step towards resolving the current problem faced by the Court. By creating enough social pressure on State Parties to domestically prosecute alleged crimes—this will ideally stop State Parties from relying on the ICC to shoulder the burden of prosecution. However, the ICC will still need to conduct prosecutions. The dossier system will not be the answer for situations where a State Party is unable to conduct prosecutions (per Article 17(2) standards). It will also not apply in situations where the UNSC refers incidents of non-State Parties.

The prosecution dossier system would also be easily instituted with existing Court resources. The OTP would conduct investigations regardless of the dossier system’s existence. Thereby, the Court will just be transferring the gathered information to domestic courts for additional prosecution of perpetrators. Eventually, the Court will be able to save substantial resources by avoiding the costs of international prosecution. By changing the metric of success to national capacity-building, the Court will further the effort to end impunity more so than by the current policy of international prosecution for only those most responsible.

This policy will also ensure the Court’s future. State Parties will no longer be encouraged to shift the burden of prosecution to the Court, particularly when faced with domestic and international criticism. Faced with the threat of international intervention, courts may be encouraged to commence domestic prosecutions.39 The Court, in the future, will be able to focus resources on investigatory capacities in addition to prosecuting when there would otherwise be impunity. This, in turn, will prevent the Court from stretching its resources too thin.

B. Limitations

There are three major concerns that will need to be resolved following the introduction of a prosecution dossier system. First, there will be legitimacy concerns raised by the possible sole reliance on the Court providing all needed material for prosecution. National courts may no longer feel the need to find additional witnesses or evidence to help build their case. Concerns would also be raised that the defense would not have an equal opportunity to gather evidence or comparable resources compared to the ICC. In response, the prosecution dossiers should be available to both the Prosecutor and defense counsel. This will alleviate concerns of resource disparity between opposing parties. Additionally, the OTP should openly encourage State Parties to conduct their own investigations for supplemental evidence before commencing prosecution.

Secondly, corruption may be a concern. Witnesses against high-ranking government officials may be killed if included on the dossiers. Some type of security system will, thus, be needed to avoid the death of these persons. Potentially, witness lists may only be made available to Prosecutors in order to protect identities. Non-governmental organizations that fight corruption may also report on incidents of witness intimidation. These reports would result in international criticism being directed at the State Party, which may deter future threats and violence.

Third, the dossier system would encourage domestic prosecution over potential due process concerns. The text of Article 17 makes a case inadmissible in situations that make it more difficult for a criminal defendant to be held accountable.40 Article 17 does not, in fact, cover situations where it would make the defendant easier to convict. This would be the case, for instance, in a sham trial.41 It is arguable that the prosecution dossier system would result in more convictions, but also increased due process infringements on the part of the accused. In order to avoid this, the Assembly of State Parties should consider amending the Rome Statute in the future to include due process considerations as grounds for admissibility to the ICC under Article 17.42

IV. Conclusion

Under the current policy, the ICC will not be able to continue prosecuting high-level perpetrators of international crime with its jurisdictional and financial limitations. As the ICC looks towards the next ten years, efforts must be made to enhance national capacity-building. One way to shift to a policy of proactive complementarity is to incorporate prosecution dossiers into the investigation process of the OTP. A dossier system, focused on providing domestic courts with the evidentiary capacity to conduct domestic prosecutions, would enable more prosecutions and adherence to the complementarity regime. By changing the metric to success to national capacity-building, the Court will further its goal of ending impunity for the most serious international crimes.

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

  1. 1.

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

  2. 2.

    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, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, available online.

  3. 3.

    William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53, 60 (2008), available online.

  4. 4.

    Id. at 67.

  5. 5.

    About, ICC, available online (last visited Jun. 18, 2018).

  6. 6.

    Rome Statute, supra note 2, Art. 15(1).

  7. 7.

    Id. at Art. 13(a) and (b).

  8. 8.

    Linda E. Carter, The International Court in 2021, 18 Sw. J. Int’l L. 199, 200 (2011), paywall.

  9. 9.

    Id. at 201.

  10. 10.

    Rome Statute, supra note 2, at Art. 1.

  11. 11.

    Id. at Art. 17(1).

  12. 12.

    Id. at Art. 17(2)(a).

  13. 13.

    Id. at Art. 17(2)(b).

  14. 14.

    Id. at Art. 17(2)(c).

  15. 15.

    Id. at Art. 17(2)(3).

  16. 16.

    Id.

  17. 17.

    William W. Burke-White, supra note 3, at 56.

  18. 18.

    Id. at 62.

  19. 19.

    Id.

  20. 20.

    Press Release, ICC, President of Uganda refers situation concerning the Lord’s Resistance Army (LRA) to the ICC, ICC-20040129-44 (Jan. 29, 2004), available online.

  21. 21.

    William W. Burke-White, supra note 3, at 63.

  22. 22.

    Id.

  23. 23.

    Id.

  24. 24.

    Marc Lacey, Atrocity Victims in Uganda Choose to Forgive, N.Y. Times, Apr. 18, 2005, available online.

  25. 25.

    William W. Burke-White, supra note 3, at 63.

  26. 26.

    Press Release, ICC, ICC Prosecutor’s Message to the LRA (Mar. 18, 2013), available online.

  27. 27.

    Beth Van Schaack, The Building Blocks of Hybrid Justice, 44 Denv. J. Intl’l L. & Pol’y 169, 215 (Dec. 19, 2015, as revised Apr. 18, 2016), available online, doi.

  28. 28.

    Id.

  29. 29.

    Alberto Costi, Hybrid Tribunals as a Viable Transitional Justice Mechanism to Combat Impunity in Post-Conflict Situations, 22 NZULR 213, 215 (Dec. 2006), available online.

  30. 30.

    Van Schaack, supra note 27, at 51.

  31. 31.

    William W. Burke-White, supra note 3, at 75.

  32. 32.

    Carter, supra note 8, at 201.

  33. 33.

    Linda E. Carter, The Future of the International Criminal Court: Complementarity as a Strength or Weakness?, 12 Wash. U. Global Stud. L. Rev. 451, 451 (2013), available online.

  34. 34.

    William W. Burke-White, supra note 3, at 56.

  35. 35.

    Review Conference of the Rome Statute, Kampala, Resolutions and Declarations Adopted by the Review Conference, RC/Res.1 (Jun. 8, 2010), available online.

  36. 36.

    Carter, supra note 8, at 204.

  37. 37.

    Rome Statute, supra note 2, at Preamble.

  38. 38.

    Carter, supra note 33, at 451.

  39. 39.

    William W. Burke-White, supra note 3 at 57.

  40. 40.

    Kevin Jon Heller, The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process, 17 Crim. L. Forum 1, 2 (2006), available online, doi.

  41. 41.

    Id. at 20.

  42. 42.

    Id. at 24.

Preventive and Creative Outreach Programs in the International Criminal Court’s Future

I. Introduction

On July 17, 2018, the International Criminal Court (ICC) will celebrate its twentieth anniversary. Since its inception, the ICC has made substantial efforts to further its goal of providing justice to victims of horrible atrocities. The ICC operates based on the principle of complementarity, i.e., the ICC exercises jurisdiction as the last option. The ICC often exercises jurisdiction over a matter when domestic courts are unable or unwilling to vindicate those who have been affected by horrible crimes which are within the ICC’s jurisdiction. Through its efforts and presence, the ICC has successfully prevented atrocities from occurring. Despite the ICC’s ambitious goals, missions, and successes, the tribunal continuously faces criticism that may threaten its very existence. Multiple countries, including strong world powers, are reluctant to provide their full, undivided support to the ICC.

In the next ten years, it is essential that the ICC adopts a policy which emphasizes the implementation of both global and local outreach programs. Such outreach programs are vital to legitimize the ICC and achieve its goals. In contrast to many domestic courts which are generally established and legitimate institutions, the ICC is a young institution that is targeted by war criminals and other individuals who spread propaganda to delegitimize it. They spread false information to thwart ICC investigations and restrain other civilians from assisting the court in its effort to arrest those wanted for committing horrible atrocities.1 Due to this propaganda, the ICC and The Office of the Prosecutor face an uphill battle when they initiate an investigation in certain countries because they are viewed as outsiders. Furthermore, a lack of outreach negatively affects victims of atrocities as well. Many victims feel disengaged and do not properly experience ICC proceedings. Trials are held in The Hague, thousands of miles away from where the international crimes being prosecuted were committed. Therefore, creative outreach programs are a vital part and instrumental to the success of the ICC.

The ICC’s success cannot be solely determined by counting the number of convictions achieved during its existence. Currently, there are roughly twenty cases in total that are either under investigation or at the preliminary examination stage. Even if these expensive investigations do not result in convictions, the ICC has not failed. Rather, the ICC is still a success if it promotes domestic prosecutions of international atrocities, prevents atrocities from happening, and deters future atrocities. This may be achieved through the successful arrest of a war criminal, or an indictment which may remove a war criminal from a conflict out of fear of arrest. Indictments may prevent atrocities from occurring. The ICC may also prevent future atrocities through a preventive outreach program.

In Part II of this comment, I examine the general information on outreach programs implemented by international tribunals. Based on this information, I note that an effective outreach program must be implemented by the ICC going forward. In Part III, I propose certain outreach strategies that the ICC may implement in the next ten years. One strategy I propose is for the ICC to implement preventive outreach programs, in which the ICC determines at risk countries and tries to spread knowledge and awareness about the ICC before conflicts start. This may prevent atrocities from occurring out of fear that the ICC may scrutinize an individual’s actions and arrest them more easily. I also propose that the ICC implement outreach programs in areas where propaganda has been spread heavily that disputes the work and legitimacy of the ICC. If the ICC seeks to gain support from citizens of countries in which it is conducting an investigation, propaganda cannot go unrebutted for a substantial length of time.

II. Background and the Importance of Outreach Programs

Outreach programs have been implemented for decades to achieve a variety of objectives, including to promote public awareness and peace among affected communities.2 Additionally, outreach programs have been used as a method to deter crimes.3 The ICC itself has recognized that an effective outreach program is necessary to accomplish its goals.4 As seen previously, international tribunals including the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) were not initially as effective as the courts hoped to be because the courts delayed implementing outreach programs. In the ICTY’s 1999 report, the ICTY recognized that the distance between the affected communities of crimes committed in the former Yugoslavia and where these war criminals were prosecuted resulted in difficulties for the ICTY.5 The ICTY, and other international tribunals are complex tribunals that do not conduct criminal proceedings in the country where the crimes occurred.6 Issues due to the distance between trial proceedings and the affected community has also been recognized by the ICTR.

International Tribunals and their workers are often not assimilated within the communities in which they are investigating. War criminals and other individuals are free to release unrebutted propaganda to citizens of their country, portraying international tribunals as illegitimate biased institutions. As a result, many citizens shelter war criminals and do not support international tribunals in their search for justice.7 Therefore, outreach programs are essential for an international tribunal to successfully operate and better conduct investigations.8 Although international tribunals have recognized the importance of outreach programs, international tribunals have trouble establishing successful outreach programs due to the unique nature of an international tribunal.

International Tribunals have previously implemented outreach programs, but have not historically always done so outright following the tribunals inception. As mentioned above, the ICTY initially struggled due to not having an outreach program from its inception in its investigations and trials.9 In fact, the ICTY operated for many years before implementing an outreach program. The ICTY began the process of implementing an outreach program roughly five years after the tribunal was created.10 Once the ICTY began to operate, the court was:

[F]requently politicized and used for propaganda purposes by its opponents who portray the Tribunal as persecuting one over other ethnic groups and mistreating persons detained under its authority.11

These claims went unrebutted for many years. The ICTY was forced to respond to these difficulties and implemented outreach programs to relieve the damage done by propaganda. The court needed to dispel lies about the ICTY’s work. Serbian citizens were exposed to this propaganda for years without any substantial rebuttal efforts by the ICTY. This delay may have created a stigma against the ICTY’s work. As a result, the ICTY did not receive full support when it arrested war criminals.

Other International Tribunals have had success in implementing outreach programs early on in their search for justice.12 The Special Court for Sierra Leone (SCSL) implemented outreach programs right from when the court started operating. The SCSL conducted town and village meetings to better connect the victims to the court’s workings.13

Additionally, the SCSL provided information on the trials it conducted through video and written materials.14 These outreach programs promoted community involvement and the affected community in Sierra Leone felt involved in the search to obtain justice for the atrocities they suffered. This commitment by the SCSL to engage, communicate, and be transparent with the local population in Sierra Leone may have factored into the success of the SCSL in its prosecutions.

Unlike the ICTY and the SCSL, the ICC was not created to investigate, prosecute, and seek justice in response to crimes committed in a specific conflict or geographic region. Rather, the ICC has jurisdiction over specific crimes listed in the Rome Statute, and may be, at any given time, conducting investigations and prosecutions based on crimes that occurred in vastly distinct countries.15 Further, unlike the SCSL, the ICC conducts trial proceedings in The Hague, which is nowhere near the location where most of the war criminals prosecuted by the ICC committed their crimes.16 Therefore, the ICC has to overcome different obstacles then the ICTY and SCSL, in that it has to formulate outreach programs that tend to different societies with vast different cultures. Despite facing more complex issues on outreach, the ICC must still learn from the difficulties experienced by the ICTY and ICTR, and invest in outreach programs.

When created, the ICC did not initially implement an active outreach program.17 This resulted in “disengagement from on-the-ground situations and from the communities that it was meant to serve.”18 Based on the mistakes of its predecessors, it is crucial that, in the next ten years, the ICC invest in more outreach efforts early on in its new investigations to avoid problems that have plagued international tribunals. The wealth of information available proves the importance of having effective outreach programs. If the ICC does not emphasize outreach moving forward, it will face an uphill battle against propaganda and charges against its legitimacy.

III. Proposals

A. Preventive Outreach

The ICC’s outreach programs were created to:

  1. provide accurate and comprehensive information to affected communities regarding the Court’s role and activities;

  2. promote greater understanding of the Court’s role during the various stages of proceedings with a view to increasing support for them among the population;

  3. foster greater participation of local communities in the activities of the Court;

  4. respond to the general concerns and expectations expressed by affected communities and by particular groups within these communities;

  5. counter misinformation; and

  6. promote access to, and understanding of, judicial proceedings among affected communities.19

Like its predecessors, the ICC focuses outreach efforts on already affected communities. In addition to targeting affected communities, the ICC should implement creative outreach programs to a worldwide audience that may prevent future atrocities from occurring. Therefore, in the next ten years, I urge the ICC to implement preventive outreach programs. This type of program will focus on preventing atrocities from occurring through education and legitimizing the work of the court by providing information worldwide.

B. At-Risk List

The ICC should formulate a list of nations that are at risk for conflicts. This can be done by gathering intel from different State Parties and other government research documents. Countries in which conflicts may be imminent are to be included in this list. Before a conflict occurs, the ICC should disperse information to citizens and the government of these countries. This can be done through a study of the way a country spreads information and news to its citizens. The ICC should use the exact method war criminals or domestic governments communicate to citizens.

The ICC should also provide parties with information on the specific crimes within the ICC’s jurisdiction. The ICC’s goals and missions should also be included. Parties who may engage in a conflict should know about the consequences that certain war crimes may result in. As a result, individuals will be on notice that if they commit a crime within the courts jurisdiction, the ICC will investigate and prosecute them. Further, if the ICC is engaged in countries before conflicts occur, individuals may be reluctant to take certain actions out of fear that the ICC will heavily scrutinize their actions. Ultimately, the ICC may prevent atrocities from occurring when individuals, especially low level military personnel, are on notice that there may be severe consequences to committing “acts of war.” This type of outreach will send a message that international crimes will not be committed with impunity.

C. Worldwide Outreach

As noted above, the ICC’s outreach program focuses its efforts on already affected communities. Rather than solely focus efforts on affected communities, the ICC should implement a worldwide outreach program. Individuals who have very limited knowledge in international law should be aware of the Court’s work. This may be accomplished through social media campaigns and conducting informational sessions on college campuses across the world.

The ICC can employ social media interns in different countries whose job is to spread information on the ICC catered to their geographic region. Interns can work remotely, create creative pages for the ICC in their native language, and frequently update the ICC’s website on the ICC’s work. Additionally, interns can help develop strategies to spread information on the ICC to a larger number of individuals. This may be done through blogging or other methods information is spread in a specific area. Since the ICC may be conducting investigations in multiple countries at once, the ICC needs diverse viewpoints in conducting its work. Interns may contact newspapers and have articles published about the court in local newspapers. Interns may also alert people about upcoming live streams or provide local communities with live updates on court proceedings.

The ICC should also strive to have professors and scholars at universities worldwide educating students and professors on the ICC’s work. If successful, students and professors, who have not done so yet, may strike an interest in the ICC and conduct independent research. Such knowledge about the ICC will spread through word of mouth which can garner more support for the court. Individuals may, as a result, donate to the court, which can increase the ICC’s ability to create new programs. Individuals may also donate money to victims, volunteer their time, and provide better support to the ICC themselves, if possible.

D. Funded Fellowships: Better Diversity?

Currently, the ICC offers multiple internship opportunities for individuals to get exposure to the complexities of international justice with one caveat: the ICC does not provide funding for these internships. Unfunded fellowships prevent many bright and ambitious individuals from contributing their diverse viewpoints to establish programs. Without offering funding, or directions on how to obtain funds, many individuals will shy away from interning or working for the ICC. The ICC suffers as a result, as many ambitious individuals could contribute immensely.

The ICC should provide funded fellowships, especially for students or individuals from areas that have a history of international crimes being committed in them that are within the ICC’s jurisdiction. For example, a fellow from Serbia will have an interesting perspective on international tribunals that can improve ICC programs and work. The ICC can bring individuals of all ages from high risk communities, or who were previously affected by the crimes of war criminals, to provide their perspective on certain issues faced by the ICC. A fellow that was a victim who received justice by the ICC’s prosecution may also help create programs for future victims. If bringing these individuals to The Hague would be too expensive, the ICC can implement remote fellowships. If tasked well, the ICC may have fellows from high risk communities and be able to create and implement effective outreach programs.

E. Rebut Propaganda

In addition to preventive outreach programs, the ICC must establish a policy of responding to propaganda spread regarding the court’s work. In the next ten years, the ICC must be more active when it dispels misinformation. This can be done by actively dispersing information on the court to various countries, even before it has intel that propaganda has been spread. As seen in Serbia, war criminals and even governments may spread propaganda to tarnish the reputation of the ICC. This results in limited participation from the local communities. The ICC already has a tough time arresting indicted individuals. Propaganda further implicates these arrest difficulties. Therefore, the ICC must implement outreach programs to rebut propaganda, which, in return, may result in more citizen participation in arresting war criminals, or individuals may be more willing to provide information. This may be done by implementing the same strategies used by individuals who spread propaganda. The ICC may also drop leaflets or otherwise disseminate documents to rebut propaganda.

IV. Conclusion

Even if the ICC has a low indicted to conviction ratio, the ICC is still a success if it provides affected communities with the power to prosecute war criminals domestically, and deters atrocities from occurring. Atrocities may be prevented by implementing a preventive outreach program. Also, the ICC must rebut propaganda in order to gain better support in its search to arrest individuals. A creative outreach program will accomplish many of the ICC’s goals, as affected communities will be exposed to the ICC’s workings and may be motivated to take over court proceedings themselves. Since the ICC is faced with the task of conducting outreach programs in multiple countries concurrently, the ICC must be creative. The average individual must be recruited by the ICC to spread awareness and communicate with their communities. There cannot be a divide between those who are well exposed to international law, and those who do not have currently have access to information on international law. Ultimately, whether the Rome Statute is still up to task in ten years may be irrelevant if the ICC does a proper job of promoting people to prosecute war criminals domestically, and putting the world on notice that mass atrocities and war crimes will no longer be tolerated.

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

  1. 1.

    Victor Peskin, Courting Rwanda: The Promises and Pitfalls of the ICTR Outreach Programme, 3 J. Int’l Crim. Just. 950, 953 (Sep. 1, 2005), available online, archived, doi.

  2. 2.

    Patrick Vinck & Phuong N. Pham, Outreach Evaluation: The International Criminal Court in the Central African Republic, 4 IJTJ 421, 422 (Sep. 11, 2010), available online, doi.

  3. 3.

    Id.

  4. 4.

    Id. at 3.

  5. 5.

    United Nations Security Council, Sixth Annual Report of the International Tribunal For the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UN Doc. A/54/187-S/1999/846, at 38 (Aug. 25, 1999) [hereinafter Sixth Annual Report], available online.

  6. 6.

    Id. at 37.

  7. 7.

    Sixth Annual Report, supra note 5, at 38.

  8. 8.

    Id.

  9. 9.

    Sara Darehshori, Lessons for Outreach from the Ad Hoc Tribunals, The Special Court for Sierra Leone, and the International Criminal Court, 14 New Eng. J. Int’l & Comp. L. 299, 301 (Dec. 3, 2008), paywall, archived.

  10. 10.

    Id.

  11. 11.

    Sixth Annual Report, supra note 5, at 38.

  12. 12.

    Darehshori, supra note 9, at 301.

  13. 13.

    Id. at 302.

  14. 14.

    Id.

  15. 15.

    Darehshori, supra note 9, at 302.

  16. 16.

    Id.

  17. 17.

    Id. at 303.

  18. 18.

    Id.

  19. 19.

    Vinck & Pham, supra note 2, at 3.

The International Criminal Court and Positive Complementarity—ASP Institutional Framework

Summary

The literature of the law has been slow to develop and present the evolving themes of positive complementarity. This comment seeks to establish how the legal and institutional framework for positive complementarity may be effectively implemented. It is argued that the existing legal and institutional framework in respect of the effective combatting of impunity is largely unsatisfactory.

This comment traces the evolution and development of the concept of positive complementarity, examining its characteristic features and attributes, and the possibilities and opportunities the concept presents for the effective combatting of impunity. It examines the various scholarly arguments advanced to explain the concept of positive complementarity, and analyses the attendant normative challenges and limitations. It is noted that there is no fixed and universally acceptable definition of positive complementarity. It is argued that there is a need for the establishment of a coherent legal and institutional framework for positive complementarity.

In this light, appropriate policy alternatives and considerations both domestically and internationally, are considered. On the international level limitations characterizing the current institutional framework of the Secretariat of the Assembly of States Parties (ASP Secretariat) are identified. It is argued that a fundamental restructuring of the ASP Secretariat is essential, and measures to restructure the ASP Secretariat in order to reinforce its effectiveness in fulfilling its mandate on positive complementarity are identified. At the domestic level, the various aspects of implementing legislation are discussed.

In conclusion, the establishment of an independent office to address positive complementarity and revitalise the institutional framework within the legal structures of the ASP Secretariat, is examined. This comment recommends far reaching changes in the institutional framework for the ASP Secretariat, which, if implemented, would effectively support the national jurisdictions of state parties in their implementation of the concept of positive complementarity. It provides a template to provoke thought and inspire further discourse—thus stimulate the intellectual desire and impetus for further research in this realm.

I. Introduction

The Rome Statute of the International Criminal Court (Rome Statute)1 provides that Court shall be complementary to the national criminal jurisdictions.2 Positive complementarity, as such, is not provided for in the text of the Rome Statute. Other than the references to the term “complementary” in the Preamble and in article 1 of the Rome Statute, there is no definition, or even a mention, of the term in any other of the Statute’s provisions.

The purpose of this comment is two-fold. Firstly, it interrogates the definition, scope, and nature of positive complementarity. Secondly, it analyses the legal and institutional framework of the Assembly of State Parties’ for the implementation of positive complementarity.3 In essence, this comment assesses the opportunities presented, the benefits generated, and the challenges raised by the concept of positive complementarity.

The literature of the international law has been slow to develop and interpret the various themes that have evolved regarding positive complementarity. Consequently, there is a glaring dearth of literature on legal and institutional framework for the concept of positive complementarity. Besides, the jurisprudence of the ICC has to date offered little in the way of exposition of the concept.4

The principal tenets—most notably the definition, the constitutive elements, and the scope—of the concept of positive complementarity, remain largely unclear. Differently phrased: the parameters of application and the formal justification for positive complementarity, have remained unclear, thereby rendering the concept susceptible to varied interpretations. The lacuna created by the absence of a concrete definition of the term in the Rome Statute generates an agenda for debate in this comment. This comment is thus conceived as my modest contribution to address this lacuna.

II. The Concept of Positive Complementarity

A. Background

From a functional point of view, teething constraints in the investigations, situations, and cases characterized the operations of the ICC.5 The Court is limited as regards the number of prosecutions it can practically and feasibly handle.6 This has led the OTP to re-evaluate its strategies and focus largely on the so-called high-ranking offenders while leaving the many lower-ranking offenders to be dealt with by national courts.7 Consequently, the OTP adopted what it termed “a positive approach to complementarity.”8

The OTP’s 2003 Paper on Some Policy Issues articulated an approach to complementarity that led to the emergence of an idea of positive complementarity.9 The Policy Paper recognizes that national investigations and prosecutions, where they can properly be undertaken, will normally be the most effective and efficient means of bringing offenders to justice.10 The ICC Prosecutor recognised this by stating that:

[T]he effectiveness of the International Criminal Court should not be measured only by the number of cases that reach the Court. On the contrary, the absence of trials by the International Criminal Court, as a consequence of the regular functioning of national systems, would be a major success.11

This was reinforced by the 2006–2009 Prosecutorial Strategy Paper which announced “A positive approach to complementarity”12 whereby the OTP:

[E]ncourages genuine national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation.13

Subsequently, the OTP’s Prosecutorial Strategy Policy Paper 2009–2012 identified positive complementarity by stating that:

[T]his principle of complementarity has two dimensions: (i) the admissibility test, i.e. how to assess the exercise of national proceedings and their genuineness, which is a judicial issue; and (ii) the positive complementarity concept, i.e. a proactive policy of cooperation aimed at promoting national proceedings.14

In conclusion, from the reports, a positive approach to complementarity means that the OTP will encourage genuine national proceedings where possible, relying on its various networks of cooperation, but without involving the Office directly in capacity building or financial or technical assistance.15

B. The Definition of Positive Complementarity: A Normative Challenge

The normative character of positive complementarity remains elusive.16 The concept of positive complementarity is the idea that the ICC and, notably, the prosecutor and the OTP, should work to engage national criminal courts in prosecutions, using various methods to encourage states to prosecute international criminal cases domestically whenever possible.17

Stahn states that complementarity has been claimed to have many faces and has raised a paradox.18 It has traditionally been theorized on the basis of a distinction between classical and positive complementarity.19 The normative question posed is: To what extent does the classification of complementarity as classical or positive define the normative characterization of positive complementarity? It is submitted this classification will ultimately derive its validity from the interpretation of the relevant provisions of the Rome Statute.20 The term classical, for instance, does not say much beyond describing that it was the original concept before the emergence of another model of complementarity, namely, positive complementarity.21

Burke-White,22 for his part, argues that “pro-active” complementarity is not expressly regulated but is embedded in the structure of complementarity in the Rome Statute.23 It is submitted that Burke-White’s attempt to develop a normative justification for pro-active complementarity24 is a semantic reflection of the OTP’s vision of positive complementarity.25

Nouwen takes a different approach to the plausibility of positive complementarity.26 She argues that complementarity has been living a double life: on the one hand, from a legal point of view it is a technical admissibility rule provided for in the Rome Statute and governing how the ICC may proceed with the investigation or prosecution of a case within its jurisdiction;27 on the other hand, complementarity presents as a big idea resulting from the work of writers, diplomats, activists, and legal practitioners.28 She contends that the advocates for complementarity as a big idea seek to promote a normative agenda beyond the confines of the Rome Statute.29 The normative difficulty introduced by the foregoing frame of argument is that, in the absence of specific references outside the Statute, Nouwen’s argument collapses.

In conclusion, there is no settled definition from the exiting literature analysed.

C. Legal Foundations of Positive Complementarity

Positive complementarity has not yet received juridical endorsement from the ICC judges by way of jurisprudence. This continues to make the exact normative value and application of the concept uncertain.

Interestingly, in the case of The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi30 the Libyan government’s legal team argued that:

Libya invites the Court to embrace the concept of positive complementarity in a manner which gives full effect to the object and purpose of the Statute and the spirit of complementarity by allowing the Libyan Government time to complete its domestic proceedings relating to Abdullah Al-Senussi subject to monitoring and the acceptance of assistance or fulfilment of other express initiatives and obligations.31

The submission continued:

[…] [T]his case provides a unique opportunity to embrace the concept of positive complementarity in a manner which gives full effect to the object and purpose of the Statute and the spirit of complementarity by allowing the Libyan Government time to complete its domestic proceedings relating to Abdullah Al-Senussi subject to monitoring and the acceptance of assistance or the fulfilment of other express initiatives and obligations.32

Further submission by the Libyan-government team underscored that:

There is no explicit reference to this concept [of positive complementarity] in the Statute, nor was it canvassed during the negotiations on complementarity, which instead focussed on developing acceptable ways to regulate jurisdictional disputes between the International Criminal Court and active national jurisdictions.33

The submission continued:

However, the Statute foreshadows the formal implementation of positive complementarity initiatives by reason of its powers to regulate the admissibility proceedings as it deems appropriate pursuant to rule 58(2), providing that this does not occasion ‘undue delay.’34

In rendering its judgment, the Pre-Trial Chamber I did not cite positive complementarity as a ground for its decision. In consequence, there is virtually no ICC jurisprudence on positive complementarity.

It is argued that certain core legal features can be ascribed to the concept of positive complementarity and are rooted partly in the provisions of the Rome Statute.35 It has also been argued that the concept of positive complementarity is largely the result of a liberal interpretation of the Statute by the ICC prosecutor.36

Nothing in the Rome Statute expressly regulates positive complementarity, but articles 17, 53, 54(1)(b) and 93(10) of the Statute are instructive for interpretation purposes. Paragraphs 4, 6 and 10 of the Preamble to the Rome Statute are equally important in determining whether a legal basis exists for positive complementarity in the Rome Statute. Nouwen argues that the Statute explicitly provides the ICC prosecutor with powers only in some identified aspects of positive complementarity.37

In conclusion it is still debatable whether the Statute provides for positive complementarity.

D. 2010 Kampala Review Conference on Stocktaking of the Rome Statute

The Kampala Review Conference, in its stocktaking exercise adopted a resolution on complementarity which gave renewed significance to positive complementarity.38 The Report states that:

[P]ositive complementarity refers to all the activities/actions whereby national jurisdictions are strengthened and enabled to conduct genuine national investigations and trials of crimes included in the Rome Statute without involving the International Criminal Court in capacity building,39 financial support and technical assistance, but instead leaving these actions and activities for States, to assist each other on a voluntary basis.40

The Bureau further recommended that a report on positive complementarity be compiled by the state parties and that this be presented to the ASP for further attention. Further, apart from setting up a designated function within the Secretariat of the ASP, the Bureau and ASP should continue to engage with stakeholders at domestic level through positive complementarity. Moreover, the Secretariat of the ASP was requested by the Bureau to facilitate the exchange of vital information between the state parties, the ICC, civil society, international and regional organisations, and other stakeholders, with the overall aim of reinforcing the effectiveness of parties’ domestic jurisdiction.41

Notwithstanding the apparent consensus on the use of the term positive complementarity throughout the review session, Germany and Spain interrogated the tenability and legal foundation of the concept. The Spanish delegation, for instance, suggested that the set of initiatives or activities included under positive complementarity might as well be simply referred to as “technical assistance.”42 Similarly, the German representatives indicated, skeptically, that the term positive complementarity lacked legal basis within the context of the provisions of the Rome Statute, and that it only:

[S]erved to confuse judicial capacity building with the principle of complementarity as laid down in Article 17 of the Rome Statute.43

The two preceding arguments by Germany and Spain are indeed persuasive challenges to the normative justification of the concept of positive complementarity.

The definition of positive complementarity was finally adopted by the Review conference, by consensus, without any new legal obligation being introduced or imposed. As a consequence, no legal or institutional framework was formulated in the resolution to back the definition up.

In conclusion, the definition of positive complementarity was characterized by loose ends that defy normative exactitude.

E. The Greentree Process

The Greentree process also addressed the concept of positive complementarity. The first retreat in the Greentree process deliberated on “Complementarity after Kampala: The way forward.”44 It sought to build on the momentum generated at the Kampala conference in promoting and implementing complementarity at domestic level.45

Significantly, the Greentree I meeting recommended that stakeholders adopt a whole of government approach to complementarity.

In conclusion, the Greentree I retreat marked a serious attempt by stakeholders to implement the principle of complementarity in the context of domestic and international criminal jurisdiction.

Greentree II convened between December 7 and 9th, 2011, under the theme “Supporting complementarity at the national level: An integrated approach to the rule of law.”46 The retreat focused on deepening the deliberations and discussions on technical and operational aspects strengthening complementarity at the domestic level.47

The Greentree II aimed to explore ways and means of implementing the concept of complementarity and strengthening domestic systems to empower them to investigate and prosecute Rome Statute crimes.48 Significantly, Greentree II examined the role that the ICC and the ASP to the Rome Statute can play in the strengthening of national capacity to investigate and prosecute serious international crimes.49

Most importantly, Greentree II proposed to put the principle of complementarity more clearly on the agenda of the ASP.50

The Greentree III retreat was convened between October 25 and 26th, 2012, with the theme: “Supporting complementarity at the national level: From theory to practice.”51 Greentree III focused on the needs and challenges confronting selected states currently engaged in the investigations and prosecutions under the Rome Statute—Colombia, the Democratic Republic of the Congo, Guatemala, and the Ivory Coast (Cote d’Ivoire).52 It was highlighted that the four states faced challenges in the promotion of accountability in their respective domestic criminal courts.53 The challenges noted included a lack of adequate training among existing staff, lack of infrastructure and financial resources, and limited human resources.54

In conclusion, the Greentree process, as seen through its three retreats, provided a valuable forum for the articulation of the nexus between international criminal justice and the developmental agenda to advance positive complementarity.

III. Institutional Framework

A. The Secretariat of the ASP and Positive Complementarity

1. Background

The Permanent Secretariat of the ASP was established under article 112 of the Rome Statute,55 as a result of a resolution adopted at the second session of the ASP on September 12, 2003.56

The resolution establishing the ASP Secretariat recalls rule 37 of the Rules of Procedure of the ASP57 in which specific functions are assigned to, or contemplated for, the Secretariat. Rule 37 of the Rules of Procedure provides that:

[T]he Secretariat shall receive, translate, reproduce and distribute documents, reports and decisions of the Assembly, Bureau and any subsidiary bodies that may be established by the Assembly; interpret speeches made at the meetings; […] and generally, perform all other work which the Assembly or the Bureau may require.58

It follows from the last provision in rule 37 that the Secretariat may be called upon by the ASP to perform all other functions as and when the Assembly or the Bureau of the ASP may require. This, arguably, could include overseeing positive complementarity assignments or projects. This comment argues that Rule 37 is a justification for invoking this particular provision to propose the extension of the functions of the ASP Permanent Secretariat to include the proposed functions on positive complementarity.

The Annex to the Resolution of the ASP establishing the Secretariat contains detailed provisions setting out the functions of the Secretariat.59 The main function entails providing the ASP and its Bureau with independent substantive services as well as administrative and technical assistance in the discharge of their responsibilities under the Rome Statute, where possible by means of pooling resources with the ICC.60 Generally, this function is impeded by inadequate financial and human resources.

A further problematic provision which reinforces the severity of resource constraints is rule 9 of the Annex to the Resolution, which provides that:

[T]he Secretariat shall be funded from the budget of the International Criminal Court. It shall have no income of its own and may not receive voluntary contributions directly from Governments or international organizations unless the Assembly decides otherwise.61

The ICC, which is the only source of funding for the Secretariat, is currently itself faced with very severe financial constraints to the extent it cannot manage all possible investigations and prosecutions simultaneously.62 Those same financial limitations apply to the Secretariat which is entrusted with important responsibilities in overseeing the implementation of positive complementarity.63

The limitations above are compounded by the provisions of rule 9 of the Annex to the Resolution, which state that the Secretariat is, in general, not authorised to receive external funding.64 Taken together, all the preceding factors tend to limit the effective implementation efforts to spearhead positive complementarity.

2. Role of the ASP Secretariat in Implementing Positive Complementarity

The state parties to the Rome Statute meeting at Kampala requested the ASP Secretariat to:

[W]ith existing resources facilitate the exchange of information between the Court, States Parties and other stakeholders, including international organizations and civil society, aimed at strengthening domestic jurisdictions.65

Arguably, the state parties recognised the possibility of constraints on the resources available to the Secretariat in pursuing its undertaking when they requested it to proceed “with existing resources.”66 Nonetheless, this request was subject to time restraints as the state parties also requested “the Secretariat of the Assembly to report to the tenth session of the Assembly on progress in this regard.”67 In other words, the ASP set in motion a process of systematic operationalization of the policy of positive complementarity which entailed regular monitoring and reporting on its progress.68

It will be recalled that the resolution on complementarity at the Kampala Review Conference (KRC) recognised the need for additional measures to be taken at the domestic level to combat impunity and the desirability of states assisting each other in this regard.69 There is no doubt that the cooperation between the states, the ICC and the ASP is necessary in developing the role of the Secretariat in a beneficial way.70

Pursuant to resolutions of the ASP, the KRC working group continued to liaise with the ASP Secretariat to support initiatives to implement positive complementarity. Under the facilitation of South Africa and Denmark—Dwarika for South Africa and Nissen for Denmark71—the Group held informal consultations on complementarity in 2011.72 The discussions centered on the role of state parties in the implementation of positive complementarity. In a similar vein, the state parties concentrated on ways in which the ASP Secretariat could undertake its mandate to implement positive complementarity.73 Following these developments, the ASP Secretariat and the ASP Bureau prepared reports on complementarity for the 10th Session of the ASP.

The facilitators identified ways in which the support of the international community would strengthen national criminal courts’ jurisdiction, in other words, how best to achieve the benefits of positive complementarity.74 The five areas the Hague Work Group undertook to address are as follows:

  1. to provide guidance to the ASP Secretariat in setting up its information-sharing function;

  2. to stimulate and reinforce dialogue on complementarity and strengthen domestic law;

  3. to provide political support;

  4. to provide suggestions on activities to be undertaken in relation to positive complementarity; and

  5. to provide a forum for the exchange of views and information on complementarity, for example, best practices and lessons learnt.75

The ASP Secretariat was mandated to work on two levels: a “general level”; and a “case-specific level.”76

On the general level, the Secretariat would undertake several activities, the first step in which entailed setting up a website for “Complementarity Extranet” (the Extranet). The Extranet is designed to: provide an information base on events relating to complementarity; identify main complementarity actors and their roles; facilitate contacts between donor states, organisations, civil society, and recipient states; give designated actors the ability to post relevant information on the Extranet in order to share information; and to provide a “message board” for users with passwords.77

On a case specific level, the ASP Secretariat, would, on a gradual basis, adopt a more proactive role of sharing and exchanging information between relevant complementarity stakeholders within international criminal law and the donor community.78 This particular role would effectively place the Secretariat at the centre of the coordination of the activities of various stakeholders geared at the implementation of the concept of positive complementarity.

3. Limitations of the ASP Secretariat in its Positive Complementarity Mandate

There are a number of factors that, individually or cumulatively, have had a negative impact on the effectiveness of the ASP Secretariat to coordinate and facilitate the activities associated with the implementation of positive complementarity.79 Each of the factors is discussed below.

i. Resources Constraint

The Secretariat lacks the financial independence required to fulfil its mandate. It must rely on the budget allocation of the ICC as approved by the ASP.80 Approval entails a bureaucratic process which could delay the implementation of certain programmes run by the Secretariat.The Resolution on the Establishment of the Secretariat provides that the Secretariat shall be funded from the budget of the ICC.81

The bureaucracy that characterises the operations of the Secretariat in terms of securing its own resources and also having to secure approval from the ASP for most of its activities, naturally slows down the pace at which the positive complementarity programmes are implemented,. Similarly, some of the delays that would be occasioned by the bureaucracy, would have the negative effect of slowing down the response to the need for implementation of positive complementarity.82

Financial constraints have rendered it impracticable to maintain a large and stable staff for the Secretariat. An independent body with a large number of staff devoted to the specialized function of coordinating positive complementarity activities, would be a recommended alternative.

Related to the preceding is the fact that the Secretariat is, in fact, prohibited from receiving direct external donor funding. This provision states that the Secretariat:

[S]hall have no income of its own and may not receive voluntary contributions directly from Governments or international organizations unless the Assembly decides otherwise.83

There does not appear to be a clear reason for this prohibition given that financial resources are urgently needed for the Secretariat to realize its mandate.

However, arguably, on careful reading of paragraph 9 it will be noted that exceptions exist to the general prohibition on the Secretariat receiving an income of its own and not receiving voluntary contributions. The paragraph provides that “unless the Assembly decides otherwise,”84 which essentially means that there are instances when the ASP may authorize the Secretariat to have income of its own, and also instances when the Assembly would allow the Secretariat to receive voluntary contributions directly from governments or international organisations.

It is debatable whether this prohibition applies to voluntarily contributions from sources which are neither governmental nor international organisations, for instance, from sponsors in the private sector.85 What is clear, however, is that such income or contributions from governments or the international organisations, can only accrue to the Secretariat once the Assembly has considered them and authorised the transactions. At the time of this comment, there is no recorded session of the ASP that has authorised the receipt of such payments.

ii. Structural Inadequacies

The structuring of the Secretariat is wanting in many respects. Its positioning suggests that it is part of the ICC structure, while ideally it should be an independent body. The perception that the Secretariat operates under the court may lead the opponents of the court to withhold their support for the Secretariat thereby limiting support for the programmes.

The Secretariat is entrusted with multifarious functions to be performed by a limited number of staff within the Registry of the ICC whose functions are not directly related to those of the Secretariat.86 For instance, one of its functions is the planning, coordination, and servicing of meetings of the ASP, which in general, are not what the Registry of the ICC does, yet the Secretariat is deemed to be an integral part of the Registry staff.

Furthermore, paragraph 7 of the Annex to the Resolution on the Establishment of the Secretariat of the ASP provides that:

[O]ther personnel resources shall include staff necessary to provide the substantive, administrative and technical assistance specified in paragraph 4 and 5.87

Paragraphs 4 and 5 outline the administrative and technical functions, but are silent on what structure will be adopted by the offices exercising these functions. Looking at the provisions of paragraphs 4 and 5, the functions of the Secretariat are multifarious which demand a large staff component to operate effectively.

iii. Mixed Mandate of the Secretariat

The Secretariat does not only work on positive complementarity, but also engages with other totally unrelated aspects of the ASP’s mandate.88 This has the effect of shifting the focus away from positive complementarity. It is a disadvantage in that the Secretariat is inundated with work unrelated to the core focus of concern to positive complementarity.

This is not to advance the argument that the only responsibility of the Secretariat is to run programmes on positive complementarity. Rather, in light of all the other functions that the Secretariat is required to perform, there will be competing calls on time and resources available to be devoted to the coordination of activities related to positive complementarity.

The ASP Secretariat has a number of functions. First, it outlines what it describes as the conference-servicing functions.89 It also provides for core legal, substantive, and financial functions. Added to this are administrative functions, and finally, the category which the Resolution describes as: “Any other functions that the services bodies entrust to the Secretariat.”90 This latter function may be viewed as open-ended in terms of what the services’ bodies may assign to the Secretariat. This observation must, however, be examined in the light of the provisions of paragraph 8 of the Resolution on the Establishment of the Secretariat91 which states that:

[T]he functions of the Secretariat shall be exercised in a manner consistent with the Statute and with the principles of effective financial administration and economy.92

In effect, therefore, the functions as set out in paragraph 7 may not be as open-ended as could easily be assumed.

iv. Not Established Under the Rome Statute

Finally, and importantly, the Secretariat is not directly a creature of the Rome Statute but rather was established by a resolution of the ASP.93 The advantage of having the Statute provide for the independent existence of such a body is that it would clearly spell out its functions and features in an unequivocal manner that it would leave less room for debate as to its role and relationship with other organs established under the same Statute, such as the ICC or the OTP.

B. Why a new Legal and Institutional Regime?

As a result of the identified weaknesses and challenges in the current institutional framework, this comment proposes policy alternatives. The first option would be to retain but restructure the current system in which activities are coordinated by the Secretariat.94

The other option would be to set up a completely new body with a degree of independence which deals specifically with positive complementarity. This presents a real challenge in light of the extant legal framework within the Rome Statute.

1. Financial Independence

Financial independence is crucial to the free operation of a body granted the important mandate to coordinate the implementation of activities involving positive complementarity. There is need for a body with sufficient independence to fund its own programmes and maintain flexibility in the implementation process—unlike the current Secretariat which relies entirely on the ICC’s annual budgetary allocation.95 The mere fact that its budget is lumped together with that of the ICC introduces the spectre of a lack of financial freedom.96

Apart from the consolidated budgetary allocation, combining funds for the ICC and the ASP Secretariat automatically introduces the fear of bias on the part of those opposed to the court and could influences those states to withhold or even withdraw their support for the work of the Secretariat.97

The proposal of a possible new and independent body focused solely on positive complementarity, could attract opposition, first of all, on the basis of an elaborate legal process that would entail the ASP debating and negotiating an amendment to the Rome Statute. As shown by the history of the negotiation and the drafting of the Rome Statute, securing a compromise stance on many articles of the final draft Statute was a real hurdle. To revive such a process would be unacceptable to many states who settled for compromise on various provisions in the Rome Statute.

It is submitted that the debate and the entire process of amending the Rome Statute to introduce provisions for the establishment of a new body to deal with positive complementarity, would take years.

Secondly, assuming the ASP authorised the establishment of a new body devoted to positive complementarity, the cost would be prohibitive. The advantages in using the existing structures and infrastructure would be lost in securing the independence of the new body.98

The proponents of a new independent body, would argue that the new body would exist independently of the ICC, its Registry, and the OTP thereby allaying the fear of bias. Indeed, the fact that the Secretariat’s budget would be directly allocated by the ASP which is a combined group of states, should engender confidence and elicit support for its activities.99 However, the source of the budget would remain the ASP so that, in the final analysis, nothing much would have changed and the same financial constraints would still apply.100

2. Increased Specialization

It could be argued that any proposed independent new body specialising in positive complementarity would have the advantage of concentrating solely on projects relating to positive complementarity—contrary to the position of the current Secretariat.101

Greater specialization would also introduce efficiency in and effective control of programming, including the timing and deployment of expert personnel in most of the aspects of the implementation of positive complementarity.

The counter-argument would be that indeed the Secretariat itself could be restructured to cater for positive complementarity in a way that does not necessarily call for a separate independent body. Further, the argument would be advanced, for instance, that the Secretariat was created by way of a resolution,102 which is indeed a much faster and easier process, and a resolution could again be used to restructure the current Secretariat.

3. Wider Acceptance

As any proposed independent body on positive complementarity would have its own budget which, coupled with greater acceptance amongst the members of the ASP, would afford such a new body the necessary support to reach a wider audience and area of operation in many states.103

It can be seen that the preceding line of argument is more political than legal. It cannot be denied, however, that the Rome Statute was a product of political influence on the legal rules. The fact that positive complementarity draws largely from the goodwill of the member states in cooperating with the ICC, underscores the importance of political will in the entire interaction.104

However, the opponents of this proposition could argue that what is important is not necessarily the degree of acceptance, but the ability to deliver and coordinate the activities involved in the process of realising the goals of positive complementarity. The new Secretariat could be restructured in such a way that positive complementarity is afforded prominence and that adequate resources are allocated to achieve its objectives.

4. Entrenched in the Rome Statute

Finally, it could be argued that the new body on positive complementarity would be entrenched in the Statute thereby granting it a greater degree of autonomy in its operations to realize its mandate. It would enjoy a degree of autonomy and confidence that would allow it to undertake the programmes it identifies as necessary for the realisation of positive complementarity.105

The counter-argument is that it would be a long, drawn out process, stretching over several years, to agree on a compromise as regards the amendment of the Rome Statute to bring in a new body on positive complementarity.106

In conclusion, weighing the merits of each side of the arguments, it is submitted that a better option would be to restructure the current Secretariat effectively to provide for a more focused role in the coordination of activities promoting positive complementarity.

IV. Conclusion and Recommendations

A. Conclusions

It is envisaged that this comment is the ultimate justification for a heightened perception of the concept of positive complementarity within international criminal law. It provides a template for designing a legal framework to inspire further discourse and thus stimulate the intellectual desire and impetus for further scholarly legal research in this area.

The practice of the ICC soon revealed many challenges with the implementation of the principle of complementarity as enshrined in the Rome Statute. It was seen in this comment that the OTP then began to shift towards advocating a positive approach to complementarity. This led to the evolution of the concept of positive complementarity. This concept, as emerges from this comment, has eluded precise definition and legal description. This lack of exactitude, in essence, constituted a critical component of the research problem in this comment.

The KRC emerged with a working, but not comprehensive, definition of positive complementarity. Alongside the review conference were the Greentree process retreats, which dealt with the practical aspects of the implementation of the principle of complementarity, but neither attempted a definition of the concept of positive complementarity, or addressed the conceptual aspects of the concept. The Greentree process, however, recognised and emphasized the central role that the Secretariat of the ASP of the Rome Statute can play in the transformation of complementarity from a conceptual basis to practical implementation ensuring effective investigation and prosecution of serious crimes under the Rome Statute. It was seen in this comment that the effectiveness of the Secretariat of ASP was impeded by limitations in financial and human resources. No profound impact has been made by the activities of the permanent ASP Secretariat on complementarity, and even the relevant sections of the ICC dealing with complementarity have not been effective in ensuring its effective implementation.

This comment therefore proposes a radical and comprehensive restructuring of the ASP Secretariat107 effectively to oversee the implementation of positive complementarity. This constitutes the originality of this thesis and offers a concrete contribution to knowledge and research.

The findings of this comment with respect to the restructuring of the current Secretariat constitute concrete recommendations to the respective governments of state parties to the Rome Statute, the ASP, the OTP, the ICC, as well as the UNSC,108 and are thus intended to inspire and prompt their urgent international initiatives.

It is interesting to observe that the very delicate balance that engendered the acceptance of the principle of complementarity, has influenced the genesis of the policy of positive complementarity. The trend in international criminal justice seems to concede more and more in favor of state sovereignty interests in the concerted effort against most serious crimes of concern to the international community.

It is also important to note that the OTP’s policy of pursuing those most responsible for crimes has tended to generate the “impunity gap.” The need to address the question of the impunity gap, coupled with the gravity threshold requirements, has, in turn, influenced the evolution of the policy of positive complementarity. The policy concept of positive complementarity, therefore, is partly associated with national activities seeking to bridge that gap and deal with the lesser-ranking offenders in the realm of international criminal justice.109

The policy concept of positive complementarity is a sui generis concept, with much uncertainty still characterizing its nature, definition, and scope. Its evolution can be traced to the consultative work of a Group of Experts who issued a report contained in the document entitled the “Informal Expert Paper”110 as already discussed in this comment. This comment finds that this Expert Paper played a critical role in shaping the content and direction of the OTP’s Prosecution Strategy Policy papers that ensued.

The current institutional structures do not effectively support the implementation of positive complementarity. The legal framework, too, is wanting in many respects when it comes to support for the actualisation of the policy concept of positive complementarity. The framework does not effectively support the involvement of the court into fully-fledged positive complementarity activities.

In light of the preceding conclusions, this comment makes recommendations, which are examined next.

B. Recommendations

In light of the preceding findings and conclusions, this comment recommends that the current Permanent Secretariat of the ASP should be restructured to incorporate certain key features that would enable a specialized focus on promoting and coordinating activities relating to positive complementarity.

The proposed restructuring of the Secretariat should be implemented by way of a resolution to be adopted by the ASP since the Secretariat itself came into existence by way of such a resolution.111 The resolution of the ASP to effect the restructuring is a much easier and less costly process than the proposal for an amendments of the Rome Statute.

A proposal to amend the Rome Statute would otherwise have to be informed and supported by the provisions of articles 121 and 122 of the Statute.112The recommendations herein would have to be channelled through the Secretary-General of the United Nations, and then to be considered by the ASP. Such proposals for amendments would have to be proposed by a state party.113

In effect, article 123 of the Rome Statute would also come into play, in that it empowers the Secretary-General of the UN to initiate the process of change in the structure of the ASP Secretariat. If this route were followed, the proposed amendments to the Statute would be double-pronged. Double-pronged because the first set of amendments would amend certain of the existing articles in the Statute. The second set would introduce entirely new provisions and set up an altogether new structure for the Secretariat.

This comment does not recommend the amendment of the Rome Statute per se for the reasons stated above. Moreover, the process of amendment of the Rome Statute would of necessity entail prohibitive costs. Instead, this comment proposes the restructuring of the Secretariat through a resolution by the ASP.

Firstly, it is suggested that a Draft Resolution be introduced that seeks to restructure the Secretariat of the ASP clearly and expressly to define the term “positive complementarity”114 and to translate it from a mere policy concept to a practical normative principle. Such a resolution should first expressly set out the following theoretical basis in its Preamble:

  1. definition of the term “positive complementarity”;
  2. identifying the elements of positive complementarity;
  3. distinguishing positive complementarity from complementarity as already set out under article 17;
  4. establishing the scope and application of positive complementarity;
  5. outlining the actors involved in the implementation of positive complementarity and their respective roles;
  6. determining the international community to act in concert to fight impunity.

The rationale for setting out the definition of the term “positive complementarity” is to ensure that there is general and common understanding of the concept in the context of the role of the ASP Secretariat. The codification of the concept of positive complementarity would help in the process of clearly delineating the roles involved in the implementation of the concept.

The next proposal is to set out the elements of the concept of positive complementarity clearly effectively to bring out what the tenets of the concept are. This way it would be easy to assign roles and functions to various actors under the proposed new legal structure of the ASP Secretariat.

The rest of the theoretic basis as set out in the proposed Preamble would help to reinforce the understanding of the scope of the concept of positive complementarity, so that its implementation would be rendered less controversial as regards certainty of roles.

Secondly, it is proposed that a special office of Coordinator for Positive Complementarity be established within the Secretariat to coordinate the activities of positive complementarity between the ICC Chambers, the OTP, state parties, and other stakeholders including civil society.

It is further proposed that the resolution will seek to ensure that the Office of the Coordinator for Positive Complementarity is not housed within the precincts of the ICC. This will ensure the degree of independence necessary for it to operate freely and autonomously while coordinating the activities of positive complementarity and assuring all parties that the ICC does not exercise undue influence on any party in the fight against impunity.

An outline of the proposals for the draft Resolution of the ASP to the Rome Statute on positive complementarity would be as follows:

  1. Establishment of Office of Coordinator for Positive Complementarity:

    1. There shall be established an Office of the Coordinator for Positive Complementarity, within the Secretariat of the Assembly of States Parties, and the office shall:

      1. be an independent office within the Secretariat that shall be solely responsible for coordinating the activities of positive complementarity between all stakeholders;

      2. be capable of raising its own funds for its operation and also for purposes of funding positive complementarity activities;

      3. not act as one of the organs of the Court, and shall in no way answer to the Office of the Prosecutor or the Court in carrying out its own responsibilities and mandate;

      4. in carrying out its mandate shall cooperate with, but shall remain independent of other Rome Statute entities, namely, the Office of the Prosecutor and other organs of the Court, save for the Office of the Director of the Secretariat and the Assembly of States Parties.

    2. The Office of the Coordinator for Positive Complementarity shall be assisted by four Deputy Coordinators respectively in charge of:

      1. capacity building: including legislative assistance, technical assistance, and infrastructural development;

      2. coordination with the stakeholders: namely civil society, international and regional bodies, including the International Criminal Court organs, other organs of the Assembly of States Parties, and the United Nations;

      3. finance;

      4. investigations and prosecutions: this function is not intended to replace the Office of the Prosecutor’s role, but rather to support the Office of the Prosecutor and national prosecutors in all their activities to ensure an effective exercise of international criminal jurisdiction by both the Office of the Prosecutor and domestic courts.

    3. The Office of the Coordinator for Positive Complementarity shall have a staff of qualified and experienced Positive Complementarity Officers who shall be available for deployment to any state party’s national courts that are ready and able to implement positive complementarity principles. Their qualifications will range from international criminal law, civil society, development, criminology, and social sciences relevant to the interests of victims of atrocities.

    4. The Coordinator for Positive Complementarity shall be appointed by the Bureau of the Assembly of States Parties upon the advice of the Director of the Secretariat of the Assembly of States Parties, and shall be a person:

      1. who has relevant qualifications, expertise, and experience in international criminal law in the context of the Rome Statute;

      2. of a high degree of integrity and independence in the execution of his or her official mandate;

      3. who is capable of exhibiting a high level of impartiality.

  2. The functions of the Office of the Coordinator for Positive Complementarity shall be:

    1. to provide expertise in international criminal law to assist in facilitating and implementing the principle of positive complementarity under the Rome Statute;

    2. to cooperate with the other offices within the Secretariat of the Assembly of States Parties, the International Criminal Court and its organs, notably the Office of the Prosecutor, in implementing positive complementarity;

    3. to cooperate with state parties to assist and empower them by way of capacity building;

    4. to liaise with donor agencies and civil society to raise funding for projects associated with positive complementarity in any state party;

    5. to provide State party national courts with experts in the judiciary, or prosecution and investigation, to reinforce domestic efforts to ensure the effective implementation of positive complementarity.

    6. to engage in any activity that would reinforce the administration of international criminal justice with respect to positive complementarity and which may from time to time be determined under the Rome Statute.

It is proposed that in the exercise of his or her duties and performance of the functions of his or her office, the Coordinator for Positive Complementarity, shall maintain extreme impartiality by not unduly favoring either the state party or the ICC, but shall ensure the attainment of the overall objective of effective action to combat impunity.

In summary, therefore, it is submitted that if the preceding legal and institutional framework is incorporated within the revised structure of the Secretariat of the ASP of the Rome Statute, the relevant legal and institutional framework for positive complementarity would be effectively established. In this way, the fight against impunity will be bolstered.

The success of the new structure would depend on a number of factors, most notably the relationship and cooperation the Secretariat will continue to have with other institutions and stakeholders, such as the other organs of the ICC. The importance of the OTP in this proposed new structure is crucial. The governments of the state and non-state parties to the Rome Statute, the international, regional and national development service providers, and civil society, all will play a crucial role in the success of the new structure, and therefore there must be cooperation and synergies between all these stakeholders.

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, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], available online.

  2. 2.

    Rome Statute, article 1.

  3. 3.

    See discussion, Dire Tladi, Complementarity and Cooperation in International Criminal Justice: Assessing Initiatives to Fill the Impunity Gap, Inst. Sec. Studies Paper 277 (Nov. 2014), available online.

  4. 4.

    See generally, The Prosecutor v. Francis Karimi Muthaura, Uhuru Muigai Kenyatta and Muhammed Hussein Ali, ICC-01/09-02/11-96, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute (PTC II, May 30, 2011), available online.

  5. 5.

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

  6. 6.

    See generally, Morten Bergsmo, The Jurisdictional Regime of the International Criminal Court, 6 Eur. J. Crim., Crim. L. & Crim. Just. 29 (1998), paywall, doi.

  7. 7.

    Office of the Prosecutor, ICC, Paper on Some Policy Issues Before the Office of the Prosecutor (Sep. 2003) [hereinafter OTP Policy Issues], available online.

  8. 8.

    Luis Moreno-Ocampo, A Positive Approach to Complementarity: The Impact of the Office of the Prosecutor, in The International Criminal Court and Complementarity: From Theory to Practice 21 (Carsten Stahn & Mohamed M. El Zeidy eds., 2011), paywall, doi.

  9. 9.

    See generally, OTP Policy Issues, supra note 7.

  10. 10.

    Id.

  11. 11.

    See International Criminal Court, Report of the Prosecutor of the ICC to the Second Assembly of States Parties (Sep. 8, 2003), available online.

  12. 12.

    International Criminal Court, Report on Prosecutorial Strategy 3 (Sep. 14, 2006), available online. See also Moreno-Ocampo, supra note 8, at 23.

  13. 13.

    Federica Gioia, “Reverse Cooperation” and the Architecture of the Rome Statute: A Vital Part of the Relationship between States and the ICC? in ICC and International Cooperation in Light of the Rome Statute 75 (Maria Chiara Malaguti ed, 2007).

  14. 14.

    Report on Prosecutorial Strategy, supra note 12, ¶¶ 8, 16.

  15. 15.

    See generally, Roger S. Clark, Amendments to the Rome Statute of the International Criminal Court Considered at the First Review Conference on the Court, Kampala 31 May-11 June 2010, 2 GoJIL 689 (2010), available online, doi.

  16. 16.

    See Matthew E. Cross & Sarah Williams, Recent Developments at the ICC: Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui—A Boost for “Co-operative Complementarity”? 10 Hum. Rts. L. Rev. 336 (Jun. 1, 2010), paywall, doi.

  17. 17.

    See Gioia, supra note 13. See also Silvana Arbia & Giovanni Bassy, Proactive Complementarity: A Registrar’s Perspective and Plans, in The International Criminal Court and Complementarity: From Theory to Practice 52 (Carsten Stahn & Mohamed M. El Zeidy eds., 2011), paywall, doi.

  18. 18.

    See generally, Carsten Stahn, Taking Complementarity Seriously, in The International Criminal Court and Complementarity: From Theory to Practice 233 (Carsten Stahn & Mohamed M. El Zeidy eds., 2011), paywall, doi.

  19. 19.

    Id.

  20. 20.

    See Rome Statute, arts. 17, 53.

  21. 21.

    See generally, Stahn, supra note 18.

  22. 22.

    See 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 (Nov. 2, 2005), paywall, doi; William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53 (2008) [hereinafter Proactive Complementarity], available online; William W. Burke-White, Implementing a Policy of Positive Complementarity in the Rome System of Justice, 19 Crim. L. Forum 59 (2008), paywall, doi; William W. Burke-White, Maximizing the ICC’s Crime Prevention Impact Through Positive Complementarity and Hard-Nosed Diplomacy, ICC Forum (Oct. 5, 2011), available online; William W. Burke-White & Scott Kaplan, Shaping the Contours of Domestic Justice: The International Criminal Court and an Admissibility Challenge in the Uganda Situation, 7 J. Int’l Crim. Just. 257 (Jun. 15, 2009), paywall, doi.

  23. 23.

    See Burke-White, Proactive Complementarity, supra note 22.

  24. 24.

    Compare Sarah M. H. Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (2013), paywall, doi.

  25. 25.

    See Darryl Robinson, The Mysterious Mysteriousness of Complementarity, 22 Crim. L. Forum 67 (Mar. 2, 2010, revised Apr. 27, 2012), available online; Benjamin Perrin, Making Sense of Complementarity: The Relationship between the International Criminal Court and National Jurisdictions, 18 Sri Lanka J. Int’l L. 301 (2006), paywall.

  26. 26.

    Nouwen, supra note 24, at 11.

  27. 27.

    Id.

  28. 28.

    Id.

  29. 29.

    Gioia, supra note 13.

    (In light of Nouwen’s argument, it is instructive to look at Giola’s discussion).

  30. 30.

    The Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11, Application on behalf of the Government of Libya relating to Abdullah Al-Senussi pursuant to Article 19 of the ICC Statute (PTC I, Apr. 2, 2013), available online.

  31. 31.

    Id. ¶ 199.

  32. 32.

    Id. ¶ 200.

  33. 33.

    Id. ¶ 201.

  34. 34.

    Id.

  35. 35.

    See Stahn, supra note 18.

  36. 36.

    See generally, Dawn Yamane Hewett, Sudan’s Courts and Complementarity in the Face of Darfur, 31 Yale J. Int’l L. 276 (2006), available online.

  37. 37.

    See Nouwen, supra note 24, at 98. See also Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court, 97 Am. J. Int’l L. 510 (2003), available online, doi.

  38. 38.

    See Clark, supra note 15. See also Mirjam Blaak, Ensuring Justice for Victims: What Began in Rome is Completed in Kampala, 2 Eq. Arms Rev. 10 (2010), available online.

  39. 39.

    See generally, Review Conference of the Rome Statute, Focal Points’ Compilation of Examples of Projects Aimed at Strengthening Domestic Jurisdictions to Deal with Rome Statute Crimes, RC/ST/CM/INF.2 (May 30, 2010), available online.

  40. 40.

    Assembly of States Parties, Report of the Bureau on Stocktaking: Complementarity, ICC-ASP/8/51, at ¶ 16 (Mar. 18, 2010) [hereinafter Bureau on Stocktaking], available online.

  41. 41.

    Id. ¶ 36.

  42. 42.

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

  43. 43.

    Id.

  44. 44.

    See generally, International Center for Transitional Justice, Meeting Summary of the Retreat on: “Complementarity After Kampala: The Way Forward” (Nov. 19, 2010) [hereinafter Greentree I], available online.

    (The meeting was held between October 28–29, 2010 at Greentree Retreat, United States).

  45. 45.

    Compare the three Reports of the ICTJ for 2010, 2011 and 2012: Greentree I, supra note 44; International Center for Transitional Justice, Synthesis Report on “Supporting Complementarity at the National Level: An Integrated Approach to Rule of Law” (Dec. 2011) [hereinafter Greentree II], available online; International Center for Transitional Justice, Synthesis Report on “Supporting Complementarity at the National Level: From Theory to Practice (Oct. 2012) [hereinafter Greentree III], available online.

  46. 46.

    See generally, Greentree II, supra note 45.

  47. 47.

    Id.

  48. 48.

    See Greentree I, supra note 44.

  49. 49.

    Id. at ¶ 10.

  50. 50.

    Id. at ¶ 13.

  51. 51.

    See generally, Greentree III, supra note 45.

  52. 52.

    Id. at ¶ 5.

  53. 53.

    See generally, id.

  54. 54.

    Id.

  55. 55.

    Rome Statute, article 112(4).

    (“The Assembly may establish such subsidiary bodies as may be necessary, including an independent oversight mechanism for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy.”).

  56. 56.

    Assembly of States Parties, Resolution on Establishment of the Permanent Secretariat of the Assembly of States Parties, ICC-ASP/2/Res.3. (Sep. 12, 2003) [hereinafter Permanent Secretariat], available online.

  57. 57.

    International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3 (Sep. 2003), available online.

  58. 58.

    Rules of Procedure of the Assembly of States Parties, ICC-ASP/1/3, Rule 37 (Sep. 2002) [hereinafter ASP Rules of Procedure], available online.

  59. 59.

    Permanent Secretariat, supra note 56, Annex ¶ 1.

    (Provides that the Secretariat shall be established at the Hague).

  60. 60.

    Id. Annex ¶ 4.

  61. 61.

    Id.

  62. 62.

    See S. Rama Rao, Financing of the Court, Assembly of States Parties and Preparatory Commission, in The International Criminal Court: The Making of the Rome Statute 399 (Roy S. K. Lee ed., 1999).

  63. 63.

    See generally, Catherine Gegout, The International Criminal Court: Limits, Potential and Conditions for the Promotion of Justice and Peace, 34 TWQ 800 (2013), available online, doi.

  64. 64.

    See Permanent Secretariat, supra note 56.

  65. 65.

    Assembly of States Parties, Report of the Bureau on Complementarity, ICC-ASP/9/26, at ¶ 5 (Nov. 17, 2010), available online.

  66. 66.

    Id. See also Phil Clark, The Limits and Pitfalls of the International Criminal Court in Africa, E-Int’l Rel. (Apr. 28, 2011), available online (last visited Jun. 16, 2018).

  67. 67.

    Report of the Bureau on Complementarity, supra note 65, ¶ 10.

  68. 68.

    See generally, Jonathan O’Donohue, The ICC and the ASP, in The Law and Practice of the International Criminal Court 105 (Carsten Stahn ed., 2015), available online.

  69. 69.

    Report of the Bureau on Complementarity, supra note 65, ¶ 11.

  70. 70.

    Id.

  71. 71.

    See generally, Tenth Session of the Assembly of States Parties, ICC (Dec. 2011, last updated Mar. 28, 2012), available online (last visited Jun. 16, 2018).

  72. 72.

    Id.

  73. 73.

    Id.

  74. 74.

    Id.

  75. 75.

    Id.

  76. 76.

    Id.

  77. 77.

    See Akbar Khan, Cooperation Between State Parties and the ICC: Challenges and Opportunities for Improvement, 2 Eq. Arms Rev. 14 (2010), available online.

  78. 78.

    Id.

  79. 79.

    See generally, David Donat-Cattin, Decision-making in the International Criminal Court: Functions of the Assembly of States Parties and the Independence of the Judicial Organs, in Essays on the Rome Statute of the International Criminal Court 69 (Flavia Lattanzi & William A. Schabas eds., 1999), available online.

  80. 80.

    (This allocation of funding is normally approved only when the ASP convenes and authorises the expenditure).

  81. 81.

    Permanent Secretariat, supra note 56, ¶ 9.

  82. 82.

    See ASP Rules of Procedure, supra note 58.

  83. 83.

    Id.

  84. 84.

    Id.

  85. 85.

    See Permanent Secretariat, supra note 56, Annex ¶ 9.

  86. 86.

    See id. ¶ 4.

    (“[T]he Secretariat shall be an integral part of the International Criminal Court and that, for administrative purposes, the Secretariat and its staff shall be attached to the Registry of the Court.”).

  87. 87.

    Id. Annex ¶ 7.

  88. 88.

    Id.

  89. 89.

    Id. Annex ¶ 5.1.

  90. 90.

    Id.

  91. 91.

    Id. Annex ¶ 8.

  92. 92.

    Id.

  93. 93.

    Id.

  94. 94.

    Id. ¶¶ 3–5.

    (See the structure of the Secretariat outlined in the Resolution).

  95. 95.

    Id. ¶ 5.3.

  96. 96.

    Id. ¶ 5.3(b).

  97. 97.

    Id.

  98. 98.

    See generally, Press Release, ICC, Assembly of States Parties Concludes its Fifteenth Session, ICC-ASP-20161125-PR1260 (Nov. 25, 2016), available online.

  99. 99.

    Id.

  100. 100.

    International Federation for Human Rights, FIDH Recommendations to the 15th Session of the Assembly of States Parties to the ICC Statute (Nov. 2016), available online.

  101. 101.

    Permanent Secretariat, supra note 56, ¶¶ 3–5.

  102. 102.

    Id.

  103. 103.

    (The current Secretariat has its budget tied to that of the ICC).

  104. 104.

    (Positive complementarity being that the court takes such measures within acceptable limits to support the national courts in effectively exercising jurisdiction over international crimes).

  105. 105.

    See generally, Ottilia Anna Maunganidze, ICC States Parties Must Walk the Talk More, Inst. Sec. Studies (Nov. 28, 2016), available online.

  106. 106.

    Id.

  107. 107.

    See Permanent Secretariat, supra note 56

  108. 108.

    Rome Statute, article 13.

    (The UNSC has power to act under Chapter VII of the UN Charter to invoke its “trigger” mechanism by referring a situation to the prosecutor so the court may exercise jurisdiction).

  109. 109.

    Bureau on Stocktaking, supra note 40.

  110. 110.

    Xabier Agirre et al., Informal Expert Paper: The Principle of Complementarity in Practice (2003), available online.

  111. 111.

    Permanent Secretariat, supra note 56.

  112. 112.

    Rome Statute, arts. 121, 122.

  113. 113.

    Rome Statute, article 123.

  114. 114.

    See generally, Burke-White, Proactive Complementarity, supra note 22.

The Future of Self-Referrals to the ICC: A Path to Greater Legitimacy with State Parties and the International Community

As a consequence of complementarity the number of cases that reach the court should not be a measure of its efficiency. On the contrary, the absence of trials before this court, as a consequence of the regular functioning of national institutions, would be a major success.1Luis Moreno Ocampo

I. Introduction

Luis Moreno-Ocampo, the original prosecutor of the International Criminal Court, began his tenure in the Office of the Prosecutor with this comment on the Court’s role as a true court of last resort. Never has a statement been more misguided. Less than two years after Ocampo made this comment, he accepted some of the first cases tackled by the Court as self-referrals by states abdicating their own judicial role and seeking to supplant it with the Courts.2 A number of criticisms have been levied at the Court over its existence ranging from its inefficiency at securing judgments3 to the Court’s “improper” or “undue” focus on situations in Africa.4 However, one of the most pressing issues for the current Court, and its future in the next ten years, will be its decision regarding complementarity and the ability of states to self-refer their issues to the Court rather than dealing with the issues themselves. In this comment, I will briefly explain how self-referrals have occurred, address and explain the critiques of the ICC accepting self-referrals, and argue that the best course of action for the ICC in the coming years is to incentivize states to self-refer their situations and read the complementarity requirement narrowly. I will argue that this reading of the complementarity requirement is a foregone conclusion for the Court due to its current procedure regarding self-referrals.

II. What are Self-Referrals?

The Rome Statute institutes strong jurisdictional requirements to limit the cases that are governed by the Court.5 One such limitation is that the Court will not have jurisdiction over a case where:

The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigative process.6

This requirement for jurisdiction is colloquially referred to as the complementarity requirement.7 In general it seeks to codify the Court’s goal of being the Court of last resort rather than a Court of primacy for these serious crimes.8 These requirements should bar cases from being considered by the Court unless there is no other actor with proper jurisdiction willing to consider the crimes. However, the wording of this requirement leaves an odd but fortunate outcome when read with the Rome Statute provisions for starting a case.

The Rome Statute provides several methods for the Prosecutor to open an investigation into serious crimes around the globe.9 These options include: the Prosecutor’s proprio motu power, United Nations Security Council referral, and referral by a state party.10 The power to self-refer cases is derivative of the ability of states to refer situations to the prosecutor.11 The referral power is listed by the Rome Statute as follows:

A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.12

Therefore, states employ the ability to refer situations happening within their own territory as that territory exists within the jurisdiction of the Court. These states abdicate their responsibility for determining whether crimes should be charged to the OTP and effectively self-refer themselves to the Court. However, this power of the state parties seems in conflict with the general requirement for the state to be unwilling or unable to prosecute themselves. If the state is willing to refer to the Prosecutor, then it seems as though it should also be willing to prosecute at a national level.13 Nonetheless, throughout the Court’s history, the Prosecutor, the Court, and the state’s party to the Rome Statute have accepted that a state may refer activities occurring within their borders to the Court.14

III. Arguments Against Self-Referrals

The practice of states self-referring to the court has drawn several different criticisms.15 These criticisms include:

  1. textual challenges to the ability to self-refer arising from challenges to whether the drafters intended to allow states to self-refer;

  2. concerns about the status quo preservation effects of self-referrals;

  3. adverse effects on prosecutorial discretion caused by self-referrals.16

Some of these criticisms may be avoided by the Court in the long term, while others are necessary costs to the advancement of the legitimacy of the Court overall.

The textual arguments arise out of a number of normal legal interpretive tools. These critiques, if damning, would be a strong basis for preventing self-referrals. Although, the Court’s current acceptance of self-referrals is good evidence that the Court at least does not accept these critiques as serious concerns. Nonetheless, critiques argue the text of the Rome Statute, when interpreted in light of the drafting discussions, precludes states from self-referring to the ICC.17, 18 Although no exceptions against self-referral are explicitly drafted into the text of Article 14 with its expansive language of “a State Party may refer to the Prosecutor a situation in which…,”19 the critiques argue that, in drafting the Rome Statute, the drafters never contemplated or mentioned the concept of states referring their own territory to the Court.20 Nonetheless, traditional concepts of legal interpretation call for the text to be the primary source of interpretation only to be dislodged if there is significant evidence indicating that the text was an error in drafting. Therefore, it seems odd to suggest that if the plain language of the text does not preclude an action to be taken by the states, that it would be so prevented by the Statute. As stated earlier, it is a good indication that, since the Court does take self-referrals, at least the current Court administration does not support this position.21

A fallback position for the textual argument is to cite the statements of the Court itself referring to its position as the “court of last resort”22 and its more recent statements stating that it has a goal of “encourage[ing] States Parties to further discuss issues related to the principle of complementarity and to explore proposals by States Parties introduced as ‘positive complementarity.’”23 Positive complementarity is usually understood to mean the goal of promoting domestic prosecutions wherever possible by the Court.24 The critic may argue that self-referrals are directly in opposition to the Court’s goals by usurping the most serious cases from creating legitimacy in the national courts. However, the Court should be seen as doing exactly the opposite by offering an alternate justice mechanism to state parties. First, the Court offers itself as an exemplar to national courts on judicial procedure, investigation, and upholding justice. The Court does this by having experienced litigators in an advanced legal mechanism try the cases of the most serious offenders in a public forum. Through this, national courts, lawyers, and the populous may observe a possible aim for their own national systems. Second, there is no reason that the ICC could not become a natural extension of a state party’s own legal system. If the state party observes the Court and believes that it is an advantageous situation for the Court to handle the most serious cases, then the state party has affirmatively consented to the Court becoming an expansion of their own legal system. Though some may think of this international system as fundamentally non-national, such an expansion of the state party system is not substantially different to states moving towards federal level systems (e.g., the ECJ, ICJ, U.S. Federal System, etc.).

The second critique relates to the political features of the referring state making a self-referral. Such an argument takes several forms and attacks the legitimacy of the Court’s action at several stages of the case. First, the state-party self-referring has the ability to selectively refer cases to the Court. For example, states may only refer situations in which the prevailing political group has not performed any illicit conduct. However, this should be a persistent concern with any investigations of the Prosecutor. The ICJ has struggled with similar concerns in arriving at their decisions:

The fact that this question also has political aspects, as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a “legal question” and to “deprive the Court of a competence expressly conferred on it by its Statute”. Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task.25

Political questions and concerns are central to all judicial decisions, especially those decisions made by young courts when legitimacy is at a premium. Therefore, the OTP should be comfortable navigating the political landscape associated with accepting and refusing cases. It is also unclear why this worry is specifically at issue with self-referrals. Certainly, states may have similar political incentives to refer only situations in which they as a state have committed no illicit acts, yet such decisions by the OTP do not concern us. Therefore, we should trust the OTP in making decisions of when an investigation is appropriate.

Second, the issue of politics can come into play when the OTP attempts to pursue the investigation of government actors’ possible culpability. Because the OTP is reliant on state compliance with their investigation, it is particularly vulnerable to timing issues with enforcement. Without an international enforcement body, there is nothing to prevent the state from ousting the Prosecutor or withholding evidence as soon as their personnel become subject to investigation,.26 There are two primary responses possible by the Prosecutor in addressing this issue: either work with the limitation, and prioritize those persons the government will assist in investigating; or go after government and non-government actors simultaneously, risking being ousted by the government. To date, it seems as if the OTP has chosen the former option. For example, in Uganda, the OTP investigated the members of the opposition party, making a number of arrests, while investigating the government and eventually determining that no government actors warranted arrest, though the investigation is ongoing.27 This action appeared political to many onlookers, potentially exacerbated by the united front presented by the OTP and the then standing Ugandan President Yoweri Museveni.28 It is unclear why the OTP has neither made any arrests, nor closed the case at hand, but one possibility is that they lack the evidence necessary to make a proper determination due to a lack of government assistance. There are populations on the ground who view the ICC’s involvement in the situation as a tool of the Ugandan government’s enforcement action.29 This puts at issue the legitimacy of the Court and hampers future investigative efforts. However, the OTP is stuck between a rock and a hard place because investigating objectively may lead to no convictions at all. Nonetheless, this issue is not particular to self-referrals as the critique may hope. The OTP is always reliant on state party assistance and access in performing their investigation, especially where many of the actors, witnesses, and evidence will be in government control, regardless of whether the situation was self-referred or brought to the OTP through alternate means.

The proper solution to this issue is not to abandon self-referrals but to increase knowledge of the task of the ICC to build political pressure on the sitting government. Removing support for an investigation is only a tenable position where the ICC’s shaming of a state for refusing to assist with the investigation does not garner sufficient political blowback. The process of gaining sufficient political legitimacy with state citizens will be a long and tiring process for the OTP, but it will be reliant on the OTP actually taking and completing a critical mass of cases that can be used to show local populations what the Court does and why it can be trusted to be placed in a judicial role.

The final issue with self-referrals is that they may put pressure on the Prosecutor to make specific determinations regarding whether a crime has occurred or not.30 Similar to United Nations Security Council referrals, self-referred situations place a party with superior information in a position to bias the Prosecutor towards finding that a crime has been committed when compared with proprio motu investigations. There are two reasons that this could influence the prosecutor.31 Firstly, because the information being presented to the Prosecutor has been packaged by an interested party, the information could seem to be better or characterized in a way that is in favor of finding liability.32 Second, the Prosecutor could fear the legitimacy loss in a country where there is popular support for ICC involvement, but the facts do not support a finding of liability.33 Perhaps the second scenario is most like the United Nations Security Council referral situation; however, in the case of a UNSC referral the Prosecutor will face much more pressure to declare the situation sufficient for liability.

The evidence authenticity/objectivity concern will always be a concern for the Prosecutor where they are frequently receiving evidence second hand months after the facts have occurred. Evidence turned over by parties will always be loaded with various biases and slants. The job of the investigator is to fully understand the issue before making any judgements about whether the evidence is sufficient. Additionally, the adversarial litigation process provides a second check against abuse by the Prosecutor. Defense counsel will be able to gather the relevant evidence and present it to the fact finder who should not be subject to the same biased viewpoint. I will admit, however, that such an adversarial process comes with the cost of time for the defendant and money for the ICC, so it may be a less than ideal solution.

A loss of legitimacy from not pursuing an investigation despite a party referral is a serious issue, but it is solvable with sufficient legitimacy for the Court. To deal with this situation, the Court must achieve sufficient legitimacy that they may be believed over the referring party when this situation occurs. Essentially, this issue turns on which party is believed more. Not indifferent from a traditional “he said she said” situation where the question turns on the believability of the parties, this will require the Prosecutor’s determination to be the more believable story. The Prosecutor can take steps to stack the deck by providing transparent investigation procedures and having a set of open scenarios for the public to view their decision making.

IV. In Pursuit of Legitimacy: Why Self-Referrals are the Best Path Forward for the Court

One aspect has been my constant rejoinder to critiques of the Court throughout this comment: legitimacy. The Court, in the coming ten years and for the foreseeable future, will be pursuing a public view of greater legitimacy. This legitimacy must be gained from many different actors including state parties, the international community, and citizens themselves. However, there is one central requirement for gaining legitimacy: trying cases. Currently, however, the Court is at an awkward crossroads where it seeks to only take the hardest and most dire scenarios where the arrest issue34 and evidentiary problems are most brought to the forefront. Therefore, the OTP should make an open appeal for state parties to refer any and all situations that fall under the legal definitions of the Rome Statute to the Court. This will serve many goals of the OTP and the Court itself by providing the Prosecutor with the chance to prove that it can handle the work of protecting justice worldwide.

Through holding itself out as the Court to handle egregious crimes regardless of whether the national justice system could handle the case, it allows countries to offset the substantial cost of investigating and trying these alleged criminals.35 As shown by the ICC so far, investigations are accomplished in a thorough manner with excellent legal minds considering the cases. This offers unique value to state parties willing to abdicate their own legal responsibility in these cases. This may also allow the Court to engage in some cost cutting due to the return on the increased scale it can achieve under the higher case load.

The Prosecutor can also incentivize state parties by pointing to the political immunization an ICC investigation offers. Although an ICC investigation comes with some sovereignty loss, the Prosecutor can offer to burden the political costs of investigation where state actors may be unable to investigate due to political concerns. Additionally, a failed investigation will not cause blow back and raise bias questions on the national government if the investigation is offloaded to the Prosecutor.

Therefore, the Prosecutor has genuine advantages to offer state parties to self-refer their crimes to the ICC rather than tackling them domestically. Such a conveyance of cases to the Court also provides significant advantages to the Court as discussed. Certainly this process will also bring costs to the Court; however, the net effect of such actions will be to increase the legitimacy of the Court.

V. Conclusion

Incentivizing parties to self-refer will serve to increase the legitimacy of the Court and provide more significant advantages to state parties incentivizing other states to sign onto the Rome Statute. As the Court has already abandoned its position as the court of last resort, it should embrace itself as a natural extension of state parties’ own judiciaries. This will entrench it in the international community as the Court to handle the most egregious crimes and as an exemplar of the judicial ideal for state parties to use in their own countries.

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

  1. 1.

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

  2. 2.

    International Criminal Court Investigations, Global Pol’y F. [hereinafter ICC Investigations], available online (last visited Jun. 18, 2018).

  3. 3.

    David Davenport, International Criminal Court: 12 Years, $1 Billion, 2 Convictions, Forbes, Mar. 12, 2014, available online.

  4. 4.

    Is the ICC Targeting Africa Inappropriately?, ICC Forum (Mar. 17, 2013), 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, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 17, available online.

  6. 6.

    Id.

  7. 7.

    Darryl Robinson, The Controversy over Territorial State Referrals and Reflections on ICL Discourse, 9 J. Int’l Crim. Just. 355, 358 (May 1, 2011), available online, doi.

  8. 8.

    About, ICC, available online (last visited Jun. 18, 2018).

  9. 9.

    Rome Statute, supra note 5, Arts. 13, 15.

  10. 10.

    Id.

  11. 11.

    Rome Statute, supra note 5, Art. 14.

  12. 12.

    Id.

  13. 13.

    (This criticism is discussed later in Part III).

  14. 14.

    ICC Investigations, supra note 2.

  15. 15.

    Robinson, supra note 7, at 356.

  16. 16.

    Id.

  17. 17.

    William A. Schabas, ‘Complementarity in Practice’: Some Uncomplimentary Thoughts, 19 Crim. L. Forum 5 (2008), paywall, doi.

  18. 18.

    Mahnoush H. Arsanjani & W. Michael Reisman, The Law-in-Action of the International Criminal Court, 99 Am. J. Int’l L. 385 (2005), available online, archived.

  19. 19.

    Rome Statute, supra note 5, Art. 14.

  20. 20.

    Robinson, supra note 7, at 361.

  21. 21.

    ICC Investigations, supra note 2.

  22. 22.

    About, supra note 8.

  23. 23.

    Assembly of States Parties, ICC, Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/8/Res.3 (Nov. 26, 2009), available online.

  24. 24.

    Katherine A. Marshall, Prevention and Complementarity in the International Criminal Court: A Positive Approach, 17 Hum. Rts. Br. 21, 22 (2010), available online, archived.

  25. 25.

    Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), I.C.J. Rep. 226, 234 (Jul. 8, 1996), available online.

  26. 26.

    Robinson, supra note 7, at 369.

  27. 27.

    Patrick Wegner, Self-Referrals and Lack of Transparency at the ICC—The Case of Northern Uganda, Just. in Conflict (Oct. 4, 2011), available online.

  28. 28.

    Id.

  29. 29.

    Id.

  30. 30.

    Robinson, supra note 7, at 369.

  31. 31.

    Id.

  32. 32.

    Id.

  33. 33.

    Id.

  34. 34.

    What More Can Be Done to Secure Arrests?, ICC Forum (Feb. 13, 2014), available online.

  35. 35.

    Davenport, supra note 3.

The ICC and Deterrence: How the ICC can Improve its Deterrence Efforts Through Creating More Realistic Threats of Enforcement

Summary

The Rome Statute’s Preamble sets forth goals that the ICC and its signatories have for the future. Although one of the primary goals is to ensure that the crimes under the ICC’s jurisdiction go punished, another goal explicitly set out by the ICC is to prevent such crimes from occurring in the future. Although deterrence is very hard to measure, it can be argued that the ICC’s efforts have not led to any significant deterrence. In this comment, I will discuss some of the issues surrounding deterrence in relation to the ICC and suggest ways in which the ICC could improve its deterrence efforts.

I. Introduction

The Rome Statute’s Preamble sets forth the reasoning behind the ICC’s creation and the goals that the ICC hopes to work towards.1 The Preamble states that the ICC recognizes that the grave crimes that are being committed around the world are a significant threat to the security of the world, and the ICC should take its diligence in exercising criminal jurisdiction over such crimes.2 The Preamble also makes clear that part of the reason that they need to exercise criminal jurisdiction over such crimes is to contribute to the prevention of such crimes in the future.3

The ICC’s effectiveness does not necessarily have to be judged on one single factor. The ICC has done a credible job of bringing justice to perpetrators of these crimes, bringing that sense of justice to the victims of the crimes, and even bringing reparations to the victims. Yet, one of the ICC’s main goals according to the Rome Statute’s Preamble, deterrence, has been harder to judge. Without a legitimate enforcement mechanism, the ICC has struggled to not only stop crimes as they are occurring, but has also not seen a significant decrease in deterrence in the short term.

Although some may argue that it is not an important factor, prioritized behind things like sense of justice or other normative issues, deterrence is a legitimate way of judging the effectiveness of the ICC. However, deterrence is a very difficult thing to measure. There is an extreme lack of empirical evidence behind deterrence.4 Not only is there a lack of international institutions to examine, but many conflicts that they do deter are filled with other post-conflict factors and institutions, making it difficult to attribute deterrence directly to the efforts of the international tribunal.5

In this comment, I briefly look at the issues behind discussing deterrence before identifying the different types of deterrence, the ICC’s history and past successes in deterrence, and finally, how the ICC can improve its deterrence efforts in the near future. In Part II, I briefly break down said difficulties behind measuring deterrence to give background understanding for the rest of the comment. In Part III, I examine the different forms of deterrence, including specific deterrence, general deterrence, and compellence and explain which of these forms of deterrence I believe are legitimate, before examining international systems of justice’s past successes and failures in pursing deterrence. Finally, in Part IV, I discuss factors that I believe could legitimately assist the ICC in promoting deterrence, including closer work with stronger international organizations like the UN, and other powerful states, who could give the ICC a legitimate threat of enforcement beyond just indictment and possible prosecution.

II. Deterrence as a Measuring Stick

Deterrence, as described above, is extremely difficult to measure. Especially with so little information to work with, finding empirical data with which to measure the effects of some form of transitional justice mechanism is difficult.6 It is also difficult to compare these types of mechanisms across countries, since they are often affected by different factors that are different from situation to situation.7 Beyond all of this, there is significant difficulties in measuring the exact impact that a justice mechanism, like the ICC, actually had on deterrence.8 For example, although there may be a period of peace and a lack of war crimes after an ICC indictment, that may have been caused by a political bargain or a military standoff and cannot be directly attributed to the acts of the ICC.9 It is also difficult to attribute a change directly to the ICC when, realistically, the stop of war crimes may come simply because there was a general uprising in peace and democracy in the country after a war has ended.10 Beyond that, general deterrence is difficult to measure, as it is difficult to know what leaders were thinking of committing atrocities before stopping after seeing other leaders punished.

That is not to say that justice mechanisms like the ICC cannot be linked directly to improvements in deterrence. However, much of what can be written about improvements in a state’s peace in a post-conflict situation is merely anecdotal or, as discussed above, difficult to believe with a flurry of other possible factors going towards the establishment of peace. For example, a qualitative study has been done on the ICTY’s effect on the former Yugoslavia.11 However, a study like this shows it weakness in its lack of quantitative data. Even statistical analysis can be difficult, and has shortcomings when attempting to show causation.12

When discussing this issue, however, it is important to recognize the shortcomings that occur when attempting to link deterrence and efficiency. This is important for two reason. First, it is important to recognize that any improvement the ICC makes could be attributed to other factors. Second, it is important to recognize that the shortcomings I discuss below could very realistically be the result of a small sample size and a short time period of results.

III. What is Deterrence?

In this comment, I will attempt to distinguish between numerous types of deterrence, discuss the ICC’s history in attempting to deter crimes, and compare those efforts to other international justice mechanisms’ abilities, thus far, in deterring crime. Within the discussion of each type of deterrence, I will also make arguments as to whether or not the ICC should legitimately focus on improving deterrence through increasing that type of deterrence.

A. Types of Deterrence

Deterrence takes numerous forms and, when discussing deterrence, it is important to distinguish between them when deciding what path to take in improving it.

Deterrence can first be divided into specific deterrence and general deterrence based on who it is meant to deter. Specific deterrence applies only to a singular individual, and is meant to stop the individual from committing a crime again after having already been punished.13 General deterrence, on the other hand, focuses on deterring the general population from committing the crime because of the punishment that it carries or because there is a general sense of normative value to not committing that crime.14 For example, a drunk driving law and subsequent prosecution may specifically deter an individual from drunk driving knowing that he or she has already been punished and the pain was not worth the pleasure. The same law would also generally deter individuals from drunk driving, not only because of the possible punishment, but because the law has established a general norm of not drunk driving.

It seems as though, in an international sense, improving general deterrence is significantly more important than improving specific deterrence. Many of the crimes committed and under ICC jurisdiction are difficult for anyone but someone in power to commit. This is only confirmed by many of the ICC indictments up to this point in time being leaders or generals. Once punished, it seems unlikely that the leader will ever be put into a position of power again and, therefore, there is less of a need for specific deterrence. However, increasing specific deterrence may be helpful for the ICC in situations in which it cannot physically convict a leader it has indicted because their home state gives them immunity. It may not be deterrence through threat of immediate punishment, but if a leader is fearful that they could be indicted in the future, they may stop committing the atrocities that they are currently committing.

General deterrence seems much more necessary, although the general population does not really need to be deterred from committing genocide or other war crimes. Instead, the focus should be on pushing general deterrence towards other leaders who are in a position to commit atrocities. Being able to punish leaders who are indicted for significant crimes can show leaders of other states that they are not immune to international law, despite any form of immunity that they may claim.

Another form of deterrence is compellence, or the ability to stop someone who is already committing a crime from continuing to commit that crime.15 Compellence has been less studied in the sphere of international law, but still presents a way for the court to improve its deterrence. This should be, in theory, the easiest form of deterrence to improve since, if the ICC was to finally enforce its indictments and prosecute leaders, it can be assumed that those crimes would stop being committed. Compellence and deterrence are really two sides of the same coin,16 and in many cases in which deterrence is examined, compellence can also be found.17 For example, if a the ICC was to use indict State B’s leader to stop State B from invading State A, that could be considered a case of enforcement working from both a compellence and deterrence perspective.18 This doesn’t necessarily mean that improving one will automatically improve the other, however, as there can be cases in which compellence occurs, but deterrence does not, and vice versa.19

These forms of deterrence also begin to take a look at two causes of deterrence. First, one school of thought states that deterrence occurs because of the associated punishment. In other words, a person who does not murder does so because he or she is afraid of the eventual punishment. A second school of thought instead contributes deterrence to normative values. According to this school of thought, a person who does not murder does so because he or she understands that murder, on its face, is a socially and ethically bad act, not because he or she is afraid of possible punishments. When expanded to the ICC and other international justice systems, punishment deterrence can be drawn to the prosecutor finding atrocities, indicting those who are responsible and, hopefully, punishing them.

It is easy to argue both sides of this issue, and it is difficult to really understand which one of these two schools of thought pushes deterrence. One could easily survey a group of one hundred and get answers from both groups. Yet, one has to consider if the theory of normative deterrence can truly extend itself to leaders on an international scale. Crimes that fall under the jurisdiction of the ICC, like genocide, are readily considered to be mass atrocities of human rights, and have been considered to be flagrant violations of international law far before any form of treaty codified them as unlawful. Yet leaders still commit these forms of atrocities, and there seems to be a lack of leaders readily deciding not to commit these atrocities because of international norms. Some of the leaders seem to actually believe that they are justified in their actions for some religious or territorial reason. If any theory of deterrence was to truly push international leaders towards not committing a crime, it would have to be the punishment theory. In order for the ICC to truly increase deterrence of these crimes, they must first prove to the international community that they have the ability to lay down harsh sentences on leaders who they indict.

B. Do Systems of International Justice have Deterrence Effects?

Before we can consider methods that can be implemented in an attempt to improve the ICC’s deterrence, we must look back on the history of deterrence at the ICC, as well as other international justice systems. Despite there being a lack of extrinsic evidence that can directly and causally link these systems and deterrence, we can look at past cases of international intervention to see what sort of effect intervention has in the first place.

For example, the ICTY’s work in Yugoslavia has been the subject of debate over the effectiveness of its prosecutorial power. Critics of the power of the ICTY’s deterrence point to the fact that, despite threats of prosecution, atrocities continued to occur.20 Even after actual prosecution, those same atrocities continued to occur.21 Proponents of the power of prosecutorial deterrence will instead point to the fact that there is at least some evidence that there was an increase in individual actors in Yugoslavia following human rights and humanitarian law.22 Despite a lack of extrinsic evidence, proponents will also argue that these types of international prosecutions, although not deterring anything in Yugoslavia, will deter other leaders from doing these same acts.23 Finally, these proponents will also argue that these ICTY prosecutions created an international norm against these crimes and, therefore, increased normative deterrence.24 Because of the lack of data and the issues discussed above, however, it is difficult to determine whether or not the ICTY’s efforts in Yugoslavia actually led to any deterrence.

The ICC has also used its prosecutorial powers to indict numerous groups for their war crimes. One group that the ICC has attacked are rebel groups and, in 2005, the ICC issued warrants for leaders of the Lord’s Resistance Army (LRA), a Ugandan rebel group.25 Because they have not operated in Uganda in recent years, they are a non-typical rebel group in that they seem to have no goal for overtaking a current government.26 Because they do not have similar goals to other rebel groups, it is difficult to discern how effective indictment of their leader will deter other rebel groups from committing similar mass atrocities.27 It is also difficult to discern deterrence effects because the LRA has been effective in avoiding prosecution after peace talks with the Ugandan government.28

Another example of ICC indictment can be seen in Darfur, when the ICC sent warrants for government officials and Sudanese leadership, including president Omar al-Bashir.29 Here, government officials and the leadership attacked civilians in order to curtail an insurgency campaign from ethnic separatists.30 In this situation, the perceived benefits to the government are high, because the negative punishment—prosecution—is outweighed by the benefits of actually committing these crimes: staying in power for longer periods of time.31 A situation like this may have less possibility for effective prosecutorial deterrence, since leaders in similar positions will have a similar desire to stay in power, and a threat of indictment may not scare them away from doing so.32 A similar line of reasoning is found in the ICC’s indictment of Laurent Gbagbo, President of Côte d’Ivoire.33

The ICC struggles with deterrence in these situations because most of the people indicted are rational actors in the sense that they act with their own best interests in mind. In the Sudanese example above, a leader in a similar position to al-Bashir may not care about the threat of indictment when the benefit of committing these war crimes is to retain power. For rebel groups, it may be the case that the positives of possibly overthrowing the incumbent government far outweighs threats made to them by the ICC or other international justice systems. Especially with the constraints around the ICC’s punishment and ability to prosecute—be it the limited strength of the convictions34 or difficulty in actually pursuing the prosecutions—the ICC has struggled to attach enough of a negative “bite” to their prosecutions to truly impose a deterrent effect on leaders. In the next section, I will go over some approaches the ICC could take in order to make it more difficult for a rational actor to ignore its power and, in turn, deter future atrocities from occurring.

IV. How can the ICC Truly Improve Deterrence?

Many of the ICC’s issues in actually deterring crimes can be directly attributed to its lack of prosecutorial power, or its lack of “bite” as it is referred to. Many of the proposed improvements to the ICC and its deterrence efforts, therefore, come from an improvement to its enforcement.

One way that the ICC could improve its deterrence is by increasing the negative that comes with the indictments. The ICC has not set down very harsh convictions for the people who are indicted and prosecuted of crimes under their jurisdiction. For example, before his sentence was overturned on appeal, Jean-Pierre Bemba was convicted of two counts of crimes against humanity and three counts of war crimes resulting in a sentence of eighteen years of imprisonment. For a leader who has to decide whether the risk of imprisonment is worth committing war crimes to continue to hold power, a relatively light sentence, especially in comparison to the crimes committed, will not make him seriously think twice. The ICC could do a better job of handing down harsher sentences, making the negative part of the equation stronger. Leaders would legitimately have to think if it is worth committing these types of crimes if the punishment was a life sentence. The extreme of this would be implementing the death penalty, although that seems like it would be really unreasonable since many states would object to the possibility of their leaders being killed, and many states have made clear that the death penalty should not be accepted in the international human rights sphere.

This would be an easier mechanism to implement because much of the power of these convictions is held in the ICC. The prosecutor and its office could simply create stronger convictions under the already lax sentencing guidelines that are set out in the Rome Statute.35 Although there is a limit of thirty years, there is a provision legalizing the use of a life sentence if the crime is grave enough.36 Being an open-ended guideline, this means that the ICC could hand down life sentences for leaders who commit these types of atrocities, thereby increasing the deterrence effect.

The other basic issue facing the ICC is that many of its indictments do not actually lead to these people being prosecuted. As seen in the above example of the Ugandan rebels, some of the people who are indicted can simply go into hiding. Other examples have been seen of leaders who will not be turned over by their home state, granting them fugitive status, like al-Bashir, discussed above. The ICC’s deterrence effectiveness is substantially reduced by the mere fact that, much of the time, it has no legitimate way of ensuring that its indictments actually go through. Leaders of other states may see that there is a legitimate punishment that the ICC can hand down, but not feel compelled to be deterred because they know that there is no way for the ICC to reach them. One way of possibly improving this would be to reach out to states in an attempt to make them send their leaders to the ICC. Although theoretically plausible and easily the most peaceful method, this is hard to imagine actually working when put to the test. It is difficult to find many states who would be willing to hand over their leaders if the ICC asked, especially since many of those leaders are in control at the time of indictment. Of course, another level of difficulty is presented if the indictment is put on a rebel group, who can be hard to track down and even harder to actually capture, especially if, like the Ugandan rebels, they move out of the jurisdiction of the state.

In my opinion, the most effective way of improving deterrence would be to get the assistance of outside forces, be it the United Nations, NATO, or powerful states that are third parties to the conflict. This would help the ICC’s deterrence efforts twofold. First, they would gain the assistance of legitimate international actors, increasing the deterrence effect because leaders or rebel groups may actually fear a threat from an established international body like the UN. Second, many of these organizations actually have “teeth” and the ability to enforce in ways that are much more threatening than just an indictment with possible jail time. Many of these bodies also have the legitimate means of entering these states and stopping conflicts, meaning that leaders will have to understand that, unlike the ICC which really has no way of physically entering the state, the United Nations could easily send Peacekeepers into the state to stop the conflict and arrest the leader.

The United Nations is one international body that the ICC could look to for assistance. The United Nations, through UN Security Council Resolutions, has the ability either send peacekeepers into a state for humanitarian intervention, or authorize other states to enter into the state on similar grounds. The United Nations also has the ability to establish its own international justice tribunals, and has done so on two occasions, establishing the ICTY and the ICTR in the face of humanitarian crises occurring in both the former Yugoslavia and Rwanda, respectively. The United Nations has shown that it is willing to authorize the use of force to prevent humanitarian crises as well, as seen by their adoption of UNSC Resolution 1973, authorizing NATO forces to enter Libya in an attempt to stop the Qadhafi regime.37

The United Nation’s past actions have shown that there could be some successes if attempting to take this path. The United Nation/NATO intervention in Libya is regarded by some as a success and by some as a failure. The civil war in Libya was ended after Qadhafi’s regime fell. There is an argument to be made that, if not for the intervention, mass atrocities would have been continued to have been committed against innocent Libyan civilians.38 However, in the aftermath of the intervention, Libya has been thrown into chaos, with no established government truly taking hold. There is a current civil war occurring in Libya, and many critics of the UN intervention point towards the intervention as the starting point for said civil war.39

Although it is difficult to discern whether or not the UN intervention truly did bring these negative effects to Libya, it is easy to see that it did accomplish some deterrent effects. First, compellence, at least on the level of the current regime stopping mass atrocities against citizens, was accomplished through the use of force. There is a legitimate argument to be made that the UN intervention has created a significant deterrent effect on other leaders in similar situations. Qadhafi was similar to other leaders in that he committed these mass atrocities in an attempt to quiet his insubordinates and maintain power over a state that was beginning to show signs of pushing back against him. However, other leaders may now see that the negative of the equation could be not just losing power, but death. This is much more likely than indictments and a possible prison sentence to deter other leaders from acting in the same way.

Of course, there are significant obstacles that stand in the way of the ICC and the UN truly working together in these situations. First, the ICC would need to actually convince the UN to work with them in the situations where they are struggling to indict individuals. The UN would really only want to use force in situations of humanitarian intervention. The ICC, of course, only has jurisdiction over situations where there is probably need for some sort of humanitarian intervention. The second roadblock is the Security Council itself, since the use of force, or authorization of use of force, would need to come from a Security Council Resolution. With five powerful permanent member states each having a veto, there is a legitimate chance that one state could prevent the United Nations from intervening, as is the current situation with Russia and Syria.40 However, if the UN would agree, it would be internationally legitimate under the umbrella of humanitarian intervention. Although there are roadblocks to this implementation, history has shown that the UN has the ability to assist the ICC in not only increasing compellence through the use of force, but also possibly increasing deterrence.

The ICC could also go to other international organizations with power, like NATO, in an attempt to gain assistance in deterrence. NATO’s forces are only meant to be called upon when one of the member states has been attacked,41 which is justified through the use of collective self-defense, one of the justifications for the use of force. As discussed above, however, NATO has supplied forces for use in situations of humanitarian intervention when authorized under a UN Security Council Resolution. However, NATO also used military force in preventing atrocities against civilians without Security Council authorization as well, when they bombed Kosovo in an attempt to bring a stop to many different crimes against humanity being committed by Yugoslavia against the people who lived there.42

As with the UN uses of force, there is legitimate debate over whether or not this actually helped the situation in Kosovo. The conflict ended, and Yugoslavia removed itself from Kosovo, so compellence was achieved. However, the Yugoslavian leader did not find himself in a worse position because of NATO’s use of force, as he survived the war and continued to rule. However, he was eventually overthrown after being indicted by the ICC. There may not have been much of a deterrent effect in this situation, because the leader was not put under any pressure from NATO. However, leaders may see that committing these atrocities could lead to intervention from NATO and, eventually, possible removal from power, increasing the deterrent effect.

Again, there are issues surrounding the ICC and NATO working together in these situations. As with the UN, NATO would have to agree to actually assist the ICC in these situations. This may be slightly more difficult since, unlike the UN, the troops themselves do not belong to any singular body, but are instead troops and weaponry that have been supplied by other states. The United States may be less likely to send some of their troops far distances under NATO command just to assist the ICC in stopping a humanitarian crisis and capturing a leader. On top of that, there is no legitimate law that gives NATO the ability to intervene in other states without the authorization from the UN Security Council. NATO’s bombing of Kosovo, done without legitimate authorization, was justified under international law’s general rules around the responsibility to prevent humanitarian crises. However, it was heavily criticized by numerous players in the international sphere, especially the UN. If NATO suddenly used this power more and more, there may be a general backlash against NATO and, even more so, the ICC if they are the ones requesting assistance.

Finally, the ICC can look for more powerful states to assist them in these situations. States could send their own troops to states in which the ICC is struggling to prevent a humanitarian crisis or struggling to capture an indicted leader. States are subject to the same rules of law as other international bodies, however, and cannot just send their troops to sovereign states for no reason. However, the UN has recently shown its support for an idea called “Responsibility to Protect” (R2P). Under this idea, states have the responsibility to protect people from violence and persecution, even in other states’ territories, but only if that state cannot prevent those atrocities itself.43 Under this general guideline, a state like the United States could send troops to another sovereign state for humanitarian reasons. One could easily see how this type of intervention would increase compellence and deterrence, since military force could be used to stop a conflict from occurring, and other leaders may want to avoid having a powerful western state enter their territory.

Again, the big issue with the ICC pursuing this path would be how much states actually would want to participate. Most states have no ability to actually send their troops far away just for humanitarian purposes. Those that do have that ability are scared to do so, with the thought that entering a sovereign state’s territory could lead to conflict within that foreign sphere. Even if they do want to help a state, R2P is not a rule of international law, but rather just a UN-supported idea. It has yet to truly be used and, if a state were to use military force in another state under the justification of R2P, there could be legitimate backlash in the international community.

V. Conclusion

Deterrence, although difficult to measure, is a legitimate means of defining the successes of the ICC. The ICC, to this date, has not proven that its powers, which are essentially limited to indictments and minor sentences for punishment, actually do a legitimate job of deterring actors from committing atrocities. This is because the negative consequences of the act do not even slightly outweigh the positives, which, as discussed above, can range from maintaining power to overthrowing a government. In order for the ICC to truly increase its powers of deterrence, it needs to increase the negative consequences behind these actions.

Although I discussed that the ICC could just increase the strictness of their punishments, I also argued that it would be easier to find other ways to increase the negative consequences. Involving other international bodies—be it the United Nations, NATO, or other powerful states—would address this twofold. First, it would increase the negative consequences by increasing the “bite” behind them, as military intervention from powerful organizations and any of the possible consequences that could extend from that is a much worse “negative” than jail time. Second, this assistance could easily help the ICC improve on their other deterrence issue, which is their inability to actually bring many of the people they indict in for trial. There are ways, be it in UN Security Council Resolutions or general principles around humanitarian intervention, to get these players involved, and although there may be roadblocks to doing so, the ICC should make a concerted effort to bring in these players to increase the ICC’s deterrence.

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, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, available online.

  2. 2.

    Id.

  3. 3.

    Id.

  4. 4.

    Oskar N.T. Thoms, James Ron & Roland Paris, The Effects of Transitional Justice Mechanisms: A Summary of Empirical Research Findings and Implications for Analysts and Practitioners, Centre for Int’l Pol’y Stud. Working Paper (Apr. 2008), available online.

  5. 5.

    Kate Cronin-Furman, Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocities, 7 IJTJ 434 (Nov. 1, 2013), paywall, doi.

  6. 6.

    Thoms et al., supra note 4.

  7. 7.

    Id.

  8. 8.

    Cronin-Furman, supra note 5.

  9. 9.

    Id.

  10. 10.

    Id.

  11. 11.

    Thoms et al., supra note 4.

  12. 12.

    Id.

  13. 13.

    Paul Huth & Bruce Russett, Testing Deterrence Theory: Rigor Makes a Difference, 42 World Pol. 466 (Jul. 1990), paywall, doi.

  14. 14.

    Id.

  15. 15.

    David Mendeloff, Punish or Persuade? The Compellence Logic of International Criminal Court Intervention in Cases of Ongoing Civilian Violence, Int’l Stud. Rev. (Dec. 02, 2017), paywall, doi.

  16. 16.

    Vesna Danilovic, When the Stakes are High: Deterrence and Conflict Among Major Powers 48 (2002), available online, doi at https:/doi.org/10.3998/mpub.16953.

  17. 17.

    Id.

  18. 18.

    Id.

  19. 19.

    (For example, if the ICC was to indict State B’s leader for invading State A in a way that goes against the Rome Statute, but State B doesn’t stop its invasion, it would be considered a case in which there was no compellence. However, there could still be a general deterrence effect if other leaders, seeing the indictment, decided not to act in a similar manner).

  20. 20.

    David Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23 Fordham Int’l L.J. 473 (1999), available online.

  21. 21.

    Id.

  22. 22.

    Id.

  23. 23.

    Id.

  24. 24.

    Id.

  25. 25.

    Cronin-Furman, supra note 4.

  26. 26.

    Id.

  27. 27.

    Id.

  28. 28.

    Id.

  29. 29.

    Id.

  30. 30.

    Id.

  31. 31.

    Id.

  32. 32.

    Id.

  33. 33.

    Id.

  34. 34.

    Rome Statute, Art. 77.

  35. 35.

    Id.

  36. 36.

    Id.

  37. 37.

    Security Council Resolution 1973, UN Doc. S/RES/1973 (Mar. 17, 2011), available online, archived.

  38. 38.

    Shadi Hamid, Everyone Says the Libya Intervention was a Failure. They’re Wrong, Brookings Markaz (Apr. 12, 2016), available online.

  39. 39.

    Id.

  40. 40.

    Julien Borger & Bastien Inzaurralde, Russian Vetoes are Putting UN Security Council’s Legitimacy at Risk, Says US, The Guardian, Sep. 23, 2015, available online.

  41. 41.

    The North Atlantic Treaty, art. 5, Apr. 4, 1949, 34 U.N.T.S. 243, available online.

  42. 42.

    Adam Roberts, NATO’s “Humanitarian War” over Kosovo, 41 Survival 102 (1999), available online.

  43. 43.

    Responsibility to Protect, United Nations Office on Genocide Prevention and the Responsibility to Protect, available online (last visited Jun. 19, 2018).

Positive Complementarity will Advance the Objectives of International Justice more Effectively than ICC Prosecutions in The Hague.

Introduction

Positive complementarity will advance the objectives of international justice more effectively than International Criminal Court (ICC) prosecutions in The Hague. To maximize its effectiveness in the prevention of crimes, the ICC should encourage and assist States Parties to undertake national prosecutions of international crimes. While there are significant obstacles to positive complementarity, there are several ways to overcome them and to implement it effectively.

The ICC Prosecutor has a mandate to investigate and prosecute cases of crimes against humanity that national states can or will not. There does not appear to be an explicit mandate for the prosecutor to offer assistance to State Parties, by helping them to develop technical skills. The Office of The Prosecutor has engaged in exercises that would constitute technical assistance.

Whether this is an appropriate or prudent use of resources is a matter of debate. On the positive side, it can do much to enhance relations, build a positive network of professionals, and show the ICC as something other than an outside presence “breathing down the neck” of states. On the other hand, a lack of a clear mandate, limited resources, and a demanding case load might suggest that time and effort should focus on investigations and prosecutions at the ICC itself.

This comment first compares the objectives of the ICC and how complementarity can help meet them. Then consideration is given to reconceptualizing the success of the ICC from just the measurement of adjudicated cases to a more inclusive measurement that takes into account the fostering of national prosecutions. If the ICC’s role is viewed through the lens of increasing the capacity of national jurisdictions to adjudicate international crimes, the measures of the ICC’s success will move from its own prosecutions to efforts to educate, assist, and facilitate national prosecutions. The focus on assisting in the development of national capacity is sometimes called “positive complementarity.” This emphasis, in turn, should suggest a different strategy for the ICC in developing national capacities. The establishment of an Institute or Center is proposed as what complementarity implemented should resemble. While complementarity could prove to be either a strength or a weakness, this comment concludes that, with a revised definition of success and a stronger focus on capacity building, complementarity likely will prove to be a strength of the ICC as an institution, helping ultimately to ensure its longevity and legitimacy.

I. Complementarity Aligns with the Objectives of the ICC

A. The ICC and the Objectives of International Criminal Law

The first objective of international criminal law is the theory of retribution. The principle has been laid down by the International Criminal Tribunal for the former Yugoslavia (ICTY) that a fair and balanced approach should be adopted regarding the punishment, which clearly shows that it should be proportional according to the nature of crimes.1 The second objective asserted by the ICTY is deterrence. Focusing on the future benefits of the punishment that other criminals will be prevented from commission of crimes and the rest of the population will be protected from these criminals.2 A newly emerged concept is that the basic aim of international criminal law is the reformation of the offender. This was practiced in the Erdemović case. The Bosnian Croat was involved in the Bosnian massacre and was sentenced to a short term of five years imprisonment, due to his young age and potential for reformation.3 A closely related objective is denunciation or education. According to this theory, arrest of the offender and his trial is a chance for the community to communicate with him and make him understand the wrong done by him and the way in which he can make himself right in future.4 Justice for the victimized party is a primary objective of international criminal law. It was held by ICTY in the Nikolić case that the punishment should be of such nature that will bring justice for all those persons who are victims of the crimes.5 It has also been asserted that the main objective of international criminal law is post conflict reconciliation. This says peace will be established in a case where justice has been done to the victim party, often expressed in the phrase that there is “no peace without justice.”6

The Preamble to the Rome Statute says that the States Parties to the Rome Statute are:

Determined to put an end to impunity for the perpetrators of [the most serious crimes of concern to the international community] and thus to contribute to the prevention of such crimes7

The Office of the Prosecutor (OTP) believes that criminal prosecutions:

[S]end an important warning to those individuals who might otherwise continue to resort to violence and criminality as a means of achieving their aims.8

However, there are limits to this theory. Certain scholars argue that:

in reality, an offender has ‘about as much chance of being prosecuted as winning the lottery.’9

Because of the limited resources and capabilities of the ICC, perpetrators face a low probability of prosecution. Consequently, some have argued that the “practical result is impunity.”10 One major reason why the threat of punishment is ineffectual is that states are either unwilling or unable to prosecute international criminals in their own national courts alongside the ICC. Thus, scholars like William W. Burke-White proposed a solution called “positive complementarity” where:

[T]he ICC would cooperate with national governments and use political leverage to encourage states to undertake their own prosecutions of international crimes.11

The OTP has embraced this policy because, in doing so, the preventative impact of the ICC can be increased.

B. Complementarity and the Objectives of International Criminal Law

Positive complementarity through technical assistance will advance the goals of the ICC in several ways. First, since Article 1 of the Rome Statute declares that the ICC “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern,” the Court is unable to prosecute lesser offenders. This has been called the “impunity gap.”12 To help close this gap, positive complementarity encourages: “domestic prosecutions of international crimes, including those that may not meet the gravity threshold for prosecution by the ICC.”13 As a result, while the ICC concentrates on more serious international crimes, national governments can prosecute those responsible for lesser crimes so that a larger portion of international crimes are held accountable.

Second, given the ICC’s nearly global mandate and its limited resources, it will be impossible for it to prosecute all—or even most of—those who are most responsible for crimes against humanity.14 Hence, there is a strong possibility that the Court will become overburdened with cases and need to off-load this to national criminal jurisdictions.15 Therefore, there is great benefit in building the capacity and capability of national criminal jurisdictions now.

Third, national courts are more cost-effective and efficient than international criminal tribunals for “evidence collection, protection of witnesses, and transportation of those who are facing charges.”16 This is because international criminal tribunals are often “far away from the crime scene, in both geographic and cultural terms,” and because national courts can utilize local personnel, need less translations, and have more judges available.17 Thus, national courts are simply better suited for prosecutions of many crimes against humanity.18 By unloading potential cases to domestic prosecution and utilizing the resources of national criminal courts, the ICC can focus on the most serious international crimes where it would be most effective or where national governments are unwilling or unable to prosecute themselves.19

Lastly, under various international treaties the obligation of domestic prosecution of international crimes is already found, including the Geneva Conventions of 1949 and the Genocide Convention, and the Preamble to the Rome Statute itself.20 Also, positive complementarity is part of the OTP’s strategy.21 In a statement, the OTP stated:

[T]he Office has adopted a positive approach to complementarity, meaning that it encourages national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation.22

Not only will the continuation of positive complementarity maximize the ICC’s impact on crime prevention, but it will reinforce existing international duties of states to prosecute domestically and foster the OTP’s explicit desire to cooperate with national judiciaries.

II. How Complementarity will Advance the ICC

There are two ways in which complementarity will help the ICC better establish and expand their role in international justice: to reconceive what is meant by “success” of the ICC and to implement a greater leadership role for the ICC in international justice.

A. Reconceive What is Meant by “Success” of the ICC

Success of both national and international courts23 is evaluated primarily by the number and types of cases tried and the fairness of the proceedings.24 For instance, on the international level, the ICTY takes pride in the number of cases tried and the notoriety of the accused that have been prosecuted. Reports to the United Nations25 and information on the ICTY’s website26 emphasize both as evidence of the success of the tribunal. The ICTY also prides itself on conducting proceedings in accord with international due process principles.27

The resolutions of the Assembly of States Parties (ASP)28 and the Court29 emphasize the importance of national capacity building and those resolutions describe various activities in which the Court should promote these efforts. However, the various efforts by the Court to assist national jurisdictions do not get equal time on the website or in the literature on the accomplishments of the Court.

Although the judicial proceedings are of value and importance, it is important for the ICC to develop a way to evaluate its role in complementarity as a measure of success. Carter, author of The Future of the International Criminal Court: Complementarity as a Strength or a Weakness,30 puts forth that if:

[W]e accept that the success of the ICC is dependent upon the two major prongs of (1) fair and impartial operation of judicial proceedings when they are needed, and (2) the increasing ability of national jurisdictions to prosecute international crimes, then we should look at tangible measures of both prongs.

Thus, the ICC needs to create a standard of success that incorporates both prongs. The judicial proceedings are well documented, and they are the focus of how the ICC is evaluating its accomplishments. It is imperative that the efforts on national capacity building be recognized and developed further so that they do have an equal role.

In its future, it will be important for the ICC to have substantive content and visibility regarding their efforts to build national capacity so that this, too, is viewed as an accomplishment of the Court. An increased focus on “success,” as measured by assistance in national capacity building, would diminish the potential weakness of complementarity. Therefore, the inherent secondary status of the Court would be redefined as a strength from the correlative increase in national prosecutions of international crimes.

B. Leadership Role for The ICC In National Capacity Building Efforts

If the ICC is to become an institution that is measured not only by the cases it tries, but also by its contributions to national capacity building, it is worthwhile to examine what the ICC’s next steps should be to increase its leadership role in national capacity building. In this part, it is suggested that the ICC could expand these efforts and gain greater recognition for them through creation of an Institute or Center within the institutional structure or in collaboration with an outside organization.

The statement by the 11th session of the ASP in November 2012 echoed the commitment to national capacity building. The ASP resolved:

To enhance the capacity of national jurisdictions to prosecute the perpetrators of the most serious crimes of international concern in accordance with internationally recognized fair trial standards, pursuant to the principle of complementarity.

Despite all the activities and statements encouraging national capacity building, the ASP and the Court have also made it clear that the ICC is not the primary actor in leading positive complementarity efforts. For example, the Bureau’s report on complementarity for the 2010 Review Conference indicated that the Court should not “become a development organization or an implementing agency.”31 Instead, they suggested that the Court should be a “catalyst of direct State-to-State assistance and indirect assistance through relevant international and regional organizations and civil society […].”32 Thus, the current position is that the ASP and the Court have a strong interest and stake in developing national capacity, but they should be considered facilitators or assistants rather than the primary actors for promoting such developments.33

There are reasons for assuming a secondary role. One is a concern with compromising the impartiality of the judicial mandate of the Court,34 and another is the cost of undertaking more involved efforts.35 Despite these concerns, the ICC would position itself better as a successful force in international criminal justice if the institution took on a leadership role in this area and engaged in even more systematic and institutionalized efforts. While NGOs and governmental organizations, such as the European Union, play a very significant role, the Court as an institution should be at the center of these efforts. If part of the measure of the success of the ICC is in not having cases, but in fostering prosecutions in national jurisdictions, then it would benefit both the image of the ICC and accountability in general if the ICC becomes the leading entity in promoting national capacity. The Court should also get recognition and respect for these efforts.

III. What Complementarity Should Look Like

The ICC should create an Institute or Center that would be separate from the Court. Such an Institute could either be a new entity created by the ASP or could be an independent entity developed in collaboration between the ASP and another organization. By making the Institute separate from the operations of the ICC as a court, the impartiality issue for the judges and other court personnel could be resolved. Reliance on NGOs, academics, and others to implement the training or other programs would help keep the costs down as well.

The Open Society Justice Initiative, in its October 2012 background paper for the November ASP meeting, called for greater ASP activity in increasing political will, education about the Court, information exchange, and sustaining and assessing state engagement.36 Similar to those suggestions, Carter purports that the Institute include at least:

  1. facilitation of training programs;

  2. coordination of international participation or advice in national prosecutions; and

  3. publications.37

Carter imagines that the training programs for judges, prosecutors, investigators, defense counsel, victims’ counsel, interpreters, and victim and witness protection personnel could be modeled on something like the judicial college in the United States or judicial training institutes in other parts of the world. The cost can be minimized by using speakers from NGOs, academia, and, as appropriate, from Court personnel. Other parts of the training programs could include sessions on legislation to implement the Rome Statute and provide infrastructure advice.

The second activity is Carter’s most innovative ideas. She proposes that the Institute could coordinate providing an international judge to sit on a mixed court in a national jurisdiction or to be an advisor for a national court.38 These would not be the same judges as are appointed to the permanent Court, so a concern with maintaining impartiality and availability would be avoided. Instead, the Institute could maintain a list of individuals available to serve as judges or attorneys. The expense would be contained because the State involved would fund the cost of having an international judge or lawyer in its national process.

The third prong suggested by Carter is publications.39 The purpose is twofold. First, the Institute would be a valuable resource if it consolidated all the materials that are presently being generated by NGOs, governmental organizations, and academic institutions. Second, it would benefit the ICC as an institution to have something tangible to document what the Court is doing to build national capacity. Just as extensive information about situations and cases are available on the ICC’s website, there could also be expanded categories dedicated to capacity-building activities. There are already beginning steps in the Complementarity forms and the Legal Tools Project on the website.40 This recommendation is to heighten the visibility of the other efforts.

Conclusion

There is tremendous opportunity for positive complementarity to become one of the most important achievements of the ICC as an institution. With complementarity as an underlying principle of the Court, a measure of the success of the ICC will be in the development of national capacity to prosecute serious international crimes. It is often stated that the ICC would be a success if it had no cases to try because national jurisdictions were assuming the responsibility to prosecute.41 This type of success, however, is dependent upon building national capacity and in redefining the purpose of the ICC as an institution.

In order to maximize its effectiveness in the prevention of crimes, the ICC should continue to encourage and assist States Parties in undertaking national prosecutions of international crimes. While there are significant obstacles to positive complementarity, there are several ways to overcome them and to implement it effectively. With a revised definition of success and a stronger focus on capacity building, complementarity likely will prove to be a strength of the ICC as an institution, ultimately helping to ensure its longevity and legitimacy.

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

  1. 1.

    Robert Cryer, Håkan Friman, Darryl Robinson & Elizabeth Wilmshurt, An Introduction to International Criminal Law and Procedure 23–25 (3rd ed. Aug. 11, 2014).

  2. 2.

    Id. at 26–27.

  3. 3.

    Id. at 28–29.

  4. 4.

    Id. at 29–30.

  5. 5.

    Id. at 30–31.

  6. 6.

    Id. at 33–34.

  7. 7.

    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, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, available online.

  8. 8.

    Lisa J. Laplante, The Domestication of International Criminal Law: A Proposal for Expanding the International Criminal Court’s Sphere of Influence, 43 John Marshall L. Rev. 635, 640 (2010), available online, citing Office of the Prosecutor, ICC, Fourth Report of the International Criminal Court to the U.N. Security Council Pursuant to UNSCR 1593 (2005) (Dec. 14, 2006), available online.

  9. 9.

    Id. at 641, citing Michael L. Smidt, The International Criminal Court: An Effective Means of Deterrence?, 167 Mil. L. Rev. 156, 188 (2001), available online, archived.

  10. 10.

    Id.

  11. 11.

    William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53, 54 (2008), available online.

  12. 12.

    Jessica Almqvist, Complementarity and Human Rights: A Litmus Test for the International Criminal Court, 30 Loy. L.A. Int’l & Comp. L. Rev. 335, 349 (2008), available online.

  13. 13.

    Burke-White, supra note 11, at 74.

  14. 14.

    Id. at 75.

  15. 15.

    Almqvist, supra note 12.

  16. 16.

    Id. at 349. See also Burke-White, supra note 11, at 68.

  17. 17.

    Id. at 68–69.

  18. 18.

    Id.

  19. 19.

    Id. 74–75.

  20. 20.

    Id. at 57. See Rome Statute, supra note 7, at Preamble

    (“Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”).

  21. 21.

    Rome Statute, supra note 7, at art. 1.

    (“[The ICC] shall be complementary to national criminal jurisdictions.”).

  22. 22.

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

  23. 23.

    See, e.g., Seeta Scully, Judging the Successes and Failures of the Extraordinary Chambers of the Courts of Cambodia, 13 Asian Pac. L. Pol’y J. 300, 325–34 (2011), available online; Padraic J. Glaspy, Justice Delayed? Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, 21 Harv. Hum. Rts. J. 143, 153–54 (Jan. 2008), paywall.

    (Glaspy writes of a lack of impartiality at the Extraordinary Chambers in the Courts of Cambodia).

    Leah Chavla, Southeast Asia and Oceania: Cambodia’s Human Rights Progress and National Reconciliatory Efforts in Jeopardy, 18 Hum. Rts. Br. 30, 40 (2011).

    (Chavla comments on the small number of individuals on trial. Other international criminal courts have been criticized for the small number of individuals on trial).

    See Lars Waldorf, “A Mere Pretense of Justice”: Complementarity, Sham Trials, and Victor’s Justice at the Rwanda Tribunal, 33 Fordham Int’l L.J. 1221, 1271–76 (2010), available online.

    (Waldorf criticizes the International Criminal Tribunal for Rwanda (ICTR) for prosecution of only one side of the conflict).

    Leslie Haskell & Lars Waldorf, The Impunity Gap of the International Criminal Tribunal for Rwanda: Causes and Consequences, 34 Hastings Int’l & Comp. L. Rev. 49, 70–78 (2011), paywall.

    (Haskell and Waldorf contrast the ICTY and Special Court for Sierra Leone (SCSL), which prosecuted all sides of the conflict, with the ICTR prosecuting only one side).

    Charles Chernor Jalloh, Special Court for Sierra Leone: Achieving Justice?, 32 Mich. J. Int’l L. 395, 418–22 (2011), available online.

    (Jalloh describes criticism based on the small number of prosecutions at the SCSL);

    Donna E. Arzt, Views on the Ground: The Local Perception of International Criminal Tribunals in the Former Yugoslavia and Sierra Leone, 603 Annals AAPSS 226, 233 (2006), paywall.

    (Arzt comments on mixed views in Sierra Leone about the small number of prosecutions).

  24. 24.

    See James Cockayne, The Fraying Shoestring: Rethinking Hybrid War Crimes Tribunals, 28 Fordham Int’l L.J. 616, 621–24 (2004), available online.

    (Cockayne posits several measures of success for international tribunals including expeditiousness of proceedings, fairness, transparency, historical documentation, inclusion of victims, reconciliation, increasing respect for the rule of law, and strengthening the judicial system. See also the discussion of requirement of fair standards in the context of transfers to Rwanda from the ICTR).

  25. 25.

    Report of the International Tribunal for the Former Yugoslavia, UN Doc. A/67/214-S/2012/592, ¶¶ 2, 67–68 (Aug. 1, 2012), available online; Report of the International Tribunal for the Former Yugoslavia, UN Doc. A/66/210-S/2011/473, ¶¶ 54–57 (Jul. 31, 2011), available online.

  26. 26.

    Key Figures of the Cases, ICTY, available online (last visited Jun. 22, 2018); In Focus, ICTY, available online (last visited Dec. 13, 2017); About the ICTY, ICTY, available online (last visited Jun. 22, 2018).

    (“[The accused have been] heads of state, prime ministers, army chiefs-of-staff, interior ministers and many other high—and mid-level political, military and police leaders”).

  27. 27.

    About the ICTY, supra note 26.

  28. 28.

    Part II: Resolutions and Declarations Adopted by the Review Conference, Res. RC/Res.1 (Jun. 8, 2010), available online; Assembly of States Parties, Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/10/Res.5, at ¶¶ 58–63 (Dec. 21, 2011), available online. Assembly of States Parties, Resolutions and Recommendations Adopted by the ASP, ICC-ASP/11/Res.6 (Nov. 21, 2012), available online.

  29. 29.

    International Criminal Court, Report on the Activities of the Court, ICC-ASP/11/21 (Oct. 9, 2012), available online.

  30. 30.

    Linda E. Carter, The Future of the International Criminal Court: Complementarity as a Strength or a Weakness?, 12 Wash. U. Global Stud. L. Rev. 451, 464 (2013), available online.

  31. 31.

    Assembly of States Parties, Report of the Bureau on Stocktaking: Complementarity, ICC-ASP/8/51, ¶ 16 (Mar. 18, 2010), available online.

    (“[P]ositive complementarity refers to all activities/actions whereby national jurisdictions are strengthened and enabled to conduct genuine national investigations and trials of crimes included in the Rome Statute, without involving the Court in capacity building, financial support and technical assistance, but instead leaving these actions and activities for States, to assist each other on a voluntary basis.”).

    Office of the Prosecutor, ICC, Prosecutorial Strategy 2009–2012, ¶¶ 16–17 (Feb. 1, 2010), available online, archived.

    (Defines “positive complementarity” as “a proactive policy of cooperation aimed at promoting national proceedings”).

    See also William W. Burke-White, supra note 11, at 53 n.4.

    (Burke-White suggests that “proactive” complementarity is a more accurate term than “positive” complementarity).

  32. 32.

    Id. at ¶ 42.

  33. 33.

    See Kevin Jon Heller, A Sentence-Based Theory of Complementarity, 53 Harv. Int’l L.J. 202, 222 (2012), available online.

    (“[T]he ICC has essentially outsourced responsibility for upgrading national legal systems to states and NGOs.”).

  34. 34.

    See also Burke-White, supra note 11, at 98–99.

    (Burke-White refers to possible conflict of interest for OTP if a state that OTP has assisted subsequently challenges admissibility and argues that it is satisfactorily moving forward because of OTP’s assistance).

  35. 35.

    See Marieke Wierda, ICTJ, Stocktaking: Complementarity 2 (May 2010), available online.

    (Mentions the cost concerns of States Parties).

  36. 36.

    Open Society Justice Initiative, Building on the Complementarity Consensus: Background for the ICC Assembly of States Parties 4 (Oct. 2012), available online.

  37. 37.

    Carter, supra note 30, at 470.

  38. 38.

    Id.

  39. 39.

    Id. at 471.

  40. 40.

    What are the ICC Legal Tools?, Legal Tools Database, available online (last visited Jun. 22, 2018).

  41. 41.

    Charles Chernor Jalloh, Africa and the International Criminal Court: Collision Course or Cooperation?, 34 N.C. Cent. L. Rev. 203, 218 n.60 (Mar. 2012), available online; Luis Moreno-Ocampo, ICC Prosecutor, Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court, 2 (Jun. 16, 2003), available online.

    (“As a consequence of complementarity, the number of cases that reach the Court should not be a measure its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.”).

Twenty Years After its Birth, it is Necessary for the International Criminal Court to Effectively Address Transnational Corporations’ Involvement in International Crimes

Introduction

The International Criminal Court will soon be celebrating the twentieth anniversary of the adoption of the Rome Statute on July 17, 1998. The creation of the Court was the result of a longstanding project, born in the aftermath of one of the worst conflicts in human history. Since it started functioning, the Court has rendered verdicts in multiple cases, several others are in trial, and many other investigations have been launched. These proceedings have targeted members of armed groups involved in various atrocities, former political leaders known for their violent repression of opposition movements and many others, and studies suggest that its action is starting to bear fruit.1 Today, twenty years after its birth, the Court asked us to reflect on the challenges it faces, from its methods of work to the strategies it should adopt, in order to improve its efficiency and effectiveness. Nevertheless, in this comment, I will not provide the Court with answers to the challenges it is already facing today. Rather, I want to seize the opportunity provided by this year’s broad question to reflect on the challenges the Court will—and should—face in the next twenty years, as it occurred to me an anniversary was the perfect occasion to do so.

The challenge I want to address is not new, but it is one on which the position and the action of the Court in the next twenty years will be critical, both for pursuing effectively its general goal of ending impunity, and for reinforcing the relevance and legitimacy of the Court itself. The challenge I am referring to is the question of the involvement of private transnational corporations in the commission of international crimes, and how and why the Court should address it as a priority in the next twenty years.

Instable regimes, armed conflicts, or situations of political turmoil have never prevented businesses from doing business. Quite the contrary, it is common knowledge that such circumstances can actually present significant opportunities for corporations and, in particular, for transnational corporations.2 In such situations, however, the line between legitimate business activities and complicity in unlawful acts becomes blurred. In fact, evidence shows that transnational corporations sometimes get involved, in various ways, in the perpetration of human rights violations amounting, in some cases, to international crimes.3 The phenomenon is no novelty, and the question of the participation of corporations in the perpetration of serious crimes famously arose as far back as the Nuremberg trials.4 However, the issue recently returned to the front of the stage as new cases emerged, especially in the context of current turmoil and armed conflicts in the Middle East. More than news of corporations’ involvement, what has been interesting is that some of them are now under investigation by domestic authorities in various countries, and some business leaders and individuals have recently been indicted.5 Bolstered by such reports, there has been growing calls for national authorities and the “international community” to take action.6 The United Nations global compact was launched in 2000 and the last edition of its forum on business and human rights took place recently in Geneva.7 The UN has also appointed a Special Representative on Business and Human Rights.8 Concurrently, the issue has attracted attention in scholarship and has led to a fair amount of literature on the topic.9

However, in that context, although international criminal law and the ICC have been mentioned, the role of the latter has often remained underestimated, and the Court itself has remained rather passive.10

Against this background, I will argue that it is critical for the ICC to seriously and vigorously address this issue in the coming years. I will show that the ICC has the means—and should strategically use them—to take a leading role in this endeavor. In Part I, I will first identify the circumstances in which the question arises, and briefly describe why the mechanisms already in place are inadequate. I will then discuss the relevant provisions of the Rome Statute and demonstrate that, as a matter of fact, the ICC does have the means to address corporations’ criminal involvement in the current state of law. Finally, I will assess the potential obstacles and difficulties the ICC is likely to face, while stressing that, in spite of those circumstances, it is the responsibility of the Court to act.

I. Relevance of the Question and Types of Criminal Involvement of Corporations

As I mentioned in the Introduction, it is no secret that businesses have always operated in areas in turmoil, armed conflicts, or under the rule of oppressive regimes. However, globalisation and the recent economic development of entire regions have increased the phenomenon. Being present in such areas, the likelihood that transnational corporations would be involved—directly or indirectly—in the commission of gross human rights violations and international crimes drastically increases.11 But exactly what kind of involvement are we talking about?

In an extremely well written piece, Wolfgan Kaleck and Miriam Saage-Maaß offer a fairly comprehensive account of the different scenarios in which corporations may get involved in the perpetration of international crime.12 They propose a typology distinguishing two main forms of involvement: corporations may have collaborated with authoritarian regimes or military forces, or they may have been involved in armed conflicts and civil wars. In the first collaboration hypothesis, they describe three situations:

  1. corporations may “profit from state violence,”13 such as in the Shell case, where the Nigerian army—paid by Shell—violently suppressed protests against one of the company’s projects;14

  2. corporations may facilitate the regime’s human rights abuses by “providing the necessary means,”15 like in the Van Anraat case, where the Dutch businessman supplied the Iraqi governments with key components of mustard gas that was eventually used against Kurdish minorities;16 or

  3. they may in some cases “directly support repression without [finding] any direct economic benefit,”17 this occurred, for instance, when Mercedes-Benz’s Argentinian subsidiary’s managers passed information to security services on political activists working at their factories, leading to the torture and disappearance of some of them.18

In the second hypothesis, in which corporations may have been involved in armed conflicts and civil wars, two types of scenario emerge:

  1. corporations may be “fuelling [the conflicts] through the provision of goods and illicit funds,” like in the Dutch Kouwenhoven case, in which a timber company supplied a party to the conflict with weapons;19 or

  2. companies may actually take an active role in the conflict by “providing military and intelligence services.”20 This last situation refers, of course, primarily to private military firms, with an example being the well-known Saleh v. Titan case where two contractors, working on behalf of the US government in the Abu Ghraib prison as well as other detention facilities, were allegedly involved in acts of torture and other degrading treatments and war crimes.21

Interestingly enough, as one can assume from the court cases I referred to, there are means to litigate and hold corporations accountable for their involvement in human rights violations and international crimes. The most effective to date is probably domestic litigation. Many domestic legal systems indeed allow the investigation and prosecution of either corporations themselves or their executives, and/or allow the filing of civil liability claims.22 Among many others, I have referred here to cases from the Netherlands as well as France for the criminal side.23 On the civil liability side, the most prominent instrument is the US’s Alien Tort Claims Act.24 The Alien Tort Claims Act has been a significant tool in holding corporations accountable for violations of human rights and international criminal law, and evidence suggests the act does have some deterrence effect.25

Other instruments also exist at the international level. For instance, as early as 1976, the OECD adopted guidelines for multinational enterprises to address this question.26 The organisation even provides a dispute settlement procedure accessible to civil society organisations. However, the system is quite limited since the guidelines are non-binding while the dispute settlement procedure offers no possibility of sanctions.27 The International Labour Office’s Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted in 1977, also offers some contribution by providing a reporting system and a commission of inquiry mechanism. Again however, not only do these instrument provide no remedy for the victims, but the implementation again lacks teeth.28 Lastly, the UN Global Compact on Businesses and Human Rights, although it constituted a political milestone, does not offer any form of enforcement mechanisms.29

II. Addressing Corporations’ Actions within the Current Framework of The Rome Statute

In that context, the legitimate question to ask is: what has the establishment of the ICC changed, if anything? How, if at all, is the ICC relevant in this fight for ensuring corporations’ accountability?

A. The Relevance of the ICC

The weaknesses of the pre-ICC mechanisms are quite self-explanatory: a fragmented framework, with a vast range of domestic rules, in both criminal and civil liability law on one side; a diversity of international mechanisms, most of them non-binding, all of them lacking effective implementation and monitoring on the other side. Ultimately, this situation is even detrimental to the transnational corporations themselves, as it becomes difficult to know with sufficient certainty what legal risks their actions entail. Accordingly, confronted by this general legal uncertainty, corporations are more often than not tempted to ignore their obligations. For their part, victims are left facing mechanisms of a Kafkaesque complexity. With a very low probability that they, or even their counsel, know about these instruments, it is very unlikely that victims will have access to an effective remedy. Turning to the practical aspects, while the investigation capacities of the existing international bodies are very weak, those of domestic law enforcement authorities are strictly limited by their jurisdiction and the general difficulty of conducting their investigations on foreign territory.30

In that context, the International Criminal Court has a decisive role to play—with all the challenges it implies.31 As far as victims are concerned, this is a more easily identifiable institution and potentially more trusted than non-binding international organs, or even foreign courts. As to corporations, the prospect of having to deal with a Court initially designed to handle cases involving genocidal regimes and war criminals, and the consequences it could have on their reputation, is probably intimidating enough to have some deterrent effect or at least draw their attention to the issue. Furthermore, and again without ignoring the many challenges it might face, in addition to having a global reach, the Court also has extremely significant and strong powers compared to existing domestic and international mechanisms.

B. Recourse to the Notion of Complicity

If the action of the Court, and more precisely its prosecutor, is necessary, on what grounds exactly can it act?

One of the core principles of international criminal law is individual criminal responsibility. This was the major contribution and innovation of the Nuremberg trials and a proposal designed to prevent individuals from hiding behind entities such as states or militias. While in practice Article 25 of the Rome Statute, entitled “Individual criminal responsibility,” leaves little room for discussion, there has been and remain debates as to whether corporations as legal persons should be held directly accountable.32 Although I will not be able to address that debate in this comment, I will simply mention that, in my opinion, the door should remain open to corporations’ responsibility. Thus the option of reforming the Rome Statute, unlikely as it may be, should be kept in mind.33 Either way, for the purpose of this comment, I will demonstrate that, as far as the lex lata is concerned, the ICC already has the means to address corporations’ criminal behavior by targeting their executives.

The Rome Statute provides the possibility of holding accountable both the principal perpetrator as well as any potential accomplice.34 Looking back at the typology of corporate involvement in the commission of international crimes teaches us that the direct involvement of transnational corporations as principal agent is rather unlikely—although not totally unimaginable. Rather, it is widely acknowledged that the involvement of corporations is more likely to be through their “contribution” to the perpetration of international crimes.35 Accordingly, much of the literature has focused on the provisions on complicity: Article 25(3)(c) of the Rome Statute, and acts of a group of persons acting with a common purpose: Article 25(3)(d) of the Rome Statute—which are, indeed, the most relevant.

For complicity to be established, Article 25(3)(c) of the Rome Statute requires two cumulative elements: the actus reus, that is to say an act that contributes to the commission of the crime; and the mens rea, the intent to contribute.

Since the Court has never interpreted these provisions, much uncertainty remains and many authors have sought to interpret the Statute’s provisions in light of the international tribunals’ case law. Regarding the actus reus, for instance, drawing on the case law of the ICTY it is interpreted as “practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”36 The notion of “substantial effect” is not precisely defined, and its exact scope remains uncertain. What is certain however is that the “contribution” need not amount to a direct effect,37 it need not be through actions of an inherent criminal nature,38 nor does it need to have been a “condition” for the commission of the crime.39 Nevertheless, there must exist a clear causal nexus between the contribution and the principal’s crime.40

As to the mens rea, here again the exact meaning of the requirement is debated.41 In particular, there seems to be a divergence between the customary law as interpreted by the international tribunals and the text of the Rome Statute, with the latter endorsing a more restrictive requirement than the former.42 However, as highlighted by Clapham, the two approaches are not necessarily contradictory.43 In fact, as a matter of coherence—with the criminal tribunals but also with the Rome Statute’s own provisions, especially Article 25(3)(d) which appears to be much broader—as well as potentially effet utile, I contend that, confronted by this question, the Court should follow the interpretation given by the international tribunals. According to these latter’s practice, the aider or abetter need not share the intent of the principal perpetrator, nor does it need to have the specific intent to contribute to the perpetration of a crime.44 Instead, the ICTY, for instance, adopted the view that mere knowledge was sufficient.45 In other words, the aider or abetter need not know what the exact crime intended is, or what the specific intent is, “as long as he is aware that one of a number of crimes will probably be committed and one of those crimes committed.”46

Turning to Article 25(3)(d) of the Rome Statute,—often referred as the “joint criminal enterprise”—this provision, actually broader than Article 25(3)(c), also offers an effective means of holding corporations accountable. As its text indicates, the situation covered is one in which several people sharing a “common purpose” contribute together to the perpetration or attempted perpetration of a crime. The individuals concerned must then either share the same intent of committing the crime,47 or just have “knowledge of the intention of the group to commit a crime.”48

Finally, it is important to recall that there is no requirement of physical proximity between the actual crime, the perpetrator, co-perpetrator, or accomplice. This principle is the very essence of international criminal law, as the goal is not to reach only those who executed, but also—should I say primarily—the “most guilty,” those who ordered, solicited, induced, facilitated, or effectively contributed to the perpetration of the crimes, insofar as there remain a certain degree of “legal proximity.”49 On a side note, although significant, as Vest points out, as the provision does not require the crime to have been committed, it is also susceptible to cover the “substantial likelihood that a certain crime will be committed.”50

In sum, although some uncertainty remains, it is beyond doubt that these provisions, wisely used, would allow the OTP to target, if not all, many of the unlawful behaviors of transnational corporations.

III. Challenges of Addressing Corporations’ Responsibility

In addition to some of the legal debates mentioned in the previous section, it is clear that it will not be an easy task for the ICC to take a leading role in addressing corporations’ accountability and the Court will encounter multiple obstacles along the way. I will not attempt to draw up an exhaustive list here, but rather point to some of the main challenges the OTP and the Court will likely face.

The first difficulty will be the predictable complexity of investigations. This is not to say that investigating other types of perpetrators is easy, but corporations nonetheless present an inherent complexity. They are often made with elaborate internal organizational structures, where the chain of command will sometimes be difficult to establish, especially in the case of the relationships between several subsidiaries and parent companies operating in different countries.51 In these situations, contrary to governments or militaries, there are neither constitutions nor statutes to clearly identify the prerogatives of various individuals.52 In addition, although I have stressed that the remoteness does not automatically hinder individual criminal responsibility of corporations’ leadership, it will not always be easy to identify the degree of involvement of particular individuals in the decision-making that eventually materialized in a criminal behaviour. For the same reasons, the general collection of evidence will also present serious challenges.53

Nonetheless, it must be noted that the modern means of communication provide significant help in that regard. Indeed, the widespread use of emails within corporations, for instance, is likely to offer valuable insights on internal decision-making processes. And that is without mentioning improved, quicker, and easier judicial cooperation with national authorities.54 Therefore, although complex, the challenge is far from impossible to address.55

In view of the above, such investigations are also likely to generate significant costs. Not mentioning substantial difficulties in the collection of evidence—such as proving that potential products supplied by a corporation were actually used in the commission of the crime—56 there will also be other practical challenges: for instance the sensitivity and secrecy surrounding most of the relevant transactions will result, first, in long and laborious investigations, and second, costly programmes of witness protection when necessary.57 The geographical scope of the investigation—likely to be spread out across different countries—will also drive up the costs. So will personnel expenses, with the foreseeable necessity to recruit new investigators specialized in corporate crime. Therefore, and in line with the requirement of gravity of Article 17(1)(d),58 the OTP will have make an assessment of the significance of the cases and select and focus only on the most serious cases in order to make good use of its limited resources.

Finally, the OTP and the Court will be put in a difficult position as the presence of transnational corporations in conflict zones or countries in turmoil is still critical to the survival of the local economies. This is so especially in periods of reconstruction and political transition for instance. Accordingly, ensuring corporations’ accountability must not lead to discouraging investment.

IV. Conclusion

While the Court will soon be celebrating the twentieth anniversary of the signing of the Rome Statute, I hope to have demonstrated why it is necessary to take the time to reflect not only on the technical and practical ways to improve its functioning and enhance its efficiency—although these are of course critical areas of concern59— but also on the substantial choices the OTP, and incidentally the Court, will have to make in the next few years, in order to ensure that the Court is indeed fulfilling its ambitious mandate.

In this regard, addressing transnational corporations’ involvement in the perpetration of international crimes, along with its financial ramifications, must be a priority. Besides significantly improving the regime of criminal liability of corporations by having one regime and one institution at the international level tackling the issue—therefore making it more transparent and predictable for corporations themselves, in addition to allowing the Court to spread its newly-acquired expertise to its member states in the spirit of complementarity—the move I am suggesting would also be about sending a message. While there has been sort of a double-standard in the past decades regarding the scrutiny over the actions of governments and armed groups on one side, and those of corporations on the other, it is important to strongly reaffirm that international criminal law, and more broadly human rights, must be respected by all.60 While we must salute the steps already adopted by the OTP in the past few years,61 it must seize the occasion of this twentieth anniversary—which will also coincide with Prosecutor Fatou Bensouda entering the last third of her mandate, and the OTP adopting its new prosecutorial strategy for the next three years—and redouble its efforts to avoid previous pledges becoming a dead letter.

Lastly, such an impetus would certainly not be only about ICC prosecution, partly because of the multiple restrictions and challenges the Court faces. Rather, this new focus would also be a strong incentive for States to take action, in coordination with and with the support of the Court. This would also draw further public attention to this issue and hopefully boost the activity of civil society organizations to this regard.

Conceived just twenty years ago, the Court has generated enthusiasm and hopes, especially for its goal to deter the most egregious forms of human rights violations. While it is still a young institution and should therefore not be too harshly judged, it is clear that tackling effectively businesses’ involvement in the commission of international crimes in the coming years is necessary if the Court wants to get closer to matching these expectations.

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

  1. 1.

    Hyeran Jo & Beth A. Simmons, Can the International Criminal Court Deter Atrocity?, 70 Int’l Org. 443 (Mar. 7, 2016), available online.

  2. 2.

    Beth Stephens, The Amorality of Profit: Transnational Corporations and Human Rights, 20 Berkeley J. Int’l L. 45 (2002), available online; Profits in a Time of War, The Economist, Sep. 20, 2014, available online.

  3. 3.

    Florian Jessberger & Julia Geneuss, Introduction, 8 J. Int’l Crim. Just. 695, 695 (Jul. 1, 2010), available online, doi; Joanna Kyriakakis, Developments in International Criminal Law and the Case of Business Involvement in International Crimes, 94 Int’l Rev. Red Cross 981 (Sep. 1, 2012), available online, doi; Human Rights Watch, The Curse of Gold: Democratic Republic of Congo (Apr. 26, 2005), available online.

  4. 4.

    Annika Van Baar & Wim Huisman, The Oven Builders of The Holocaust: A Case Study of Corporate Complicity, 52 BJC 1033 (Nov. 1, 2012), paywall, doi; Florian Jessberger, On the Origins of Individual Criminal Responsibility under International Law for Business Activity: IG Farben on Trial, 8 J. Int’l Crim. Just. 783 (Jul. 8, 2010), paywall, doi; Jonathan A. Bush, The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said, 109 Colum. L. Rev. 1094 (Jun. 2009), paywall.

  5. 5.

    Liz Alderman, France Investigates Lafarge Executives for Terrorist Financing, N.Y. Times, Dec. 8, 2017, available online; Former LafargeHolcim CEO Charged over Terror Financing Allegations, France 24, Dec. 8, 2017, available online; Volterra Fietta, Dutch Court Convicts Former “Timber Baron” of War Crimes in Liberia, Lexology, Oct. 4, 2017, available online.

  6. 6.

    Amnesty International, Investigate Shell for Complicity in Murder, Rape and Torture (Nov. 28, 2017), available online; Salil Shetty, Corporations have Rights. Now We need a Global Treaty on their Responsibilities, The Guardian, Jan. 21, 2015, available online; John Vidal & Owen Bowcott, ICC Widens Remit to Include Environmental Destruction Cases, The Guardian, Sep. 15, 2016, available online.

  7. 7.

    Andrew Clapham, Human Rights Obligations of Non-State Actors 218–25 (2006), paywall, doi.

  8. 8.

    UN Commission on Human Rights, Human Rights Resolution 2005/69: Human Rights and Transnational Corporations and Other Business Enterprises, E/CN.4/RES/2005/69 (Apr. 20, 2005), available online.

  9. 9.

    Philip Alston, Ed., Non-State Actors and Human Rights (Sep. 29, 2005); Olivier De Schutter, Ed., Transnational Corporations and Human Rights (Sep. 11, 2006), paywall; Clapham, supra note 7; David Kinley, Ed., Human Rights and Corporations (2009); Alexandra Gatto, Multinational Enterprises and Human Rights: Obligations Under EU Law and International Law (Jan. 1, 2011), paywall; James Graham Stewart, Atrocity, Commerce and Accountability: Corporate Responsibility for International Crimes (2013) (Unpublished JSD Dissertation, Columbia University), available online, doi; Stéfanie Khoury & David Whyte, Corporate Human Rights Violations: Global Prospects for Legal Action (Dec. 20, 2016), paywall; Surya Deva & David Bilchitz, Eds., Building a Treaty on Business and Human Rights: Context and Contours (Oct. 2017), paywall, doi.

  10. 10.

    Kyle Rex Jacobson, Doing Business with the Devil: The Challenges of Prosecuting Corporate Officials Whose Business Transactions Facilitate War Crimes and Crimes against Humanity, 56 A.F. L. Rev. 167 (Jan. 1, 2005), paywall.

  11. 11.

    Danielle Olson, Corporate Complicity in Human Rights Violations Under International Criminal Law, 1 Int’l Hum. Rts. L.J. 1 (2015), available online.

  12. 12.

    Wolfgang Kaleck & Miriam Saage-Maaß, Corporate Accountability for Human Rights Violations Amounting to International Crimes: The Status Quo and its Challenges, 8 J. Int’l Crim. Just. 699 (Jul. 8, 2010), available online; Hans Vest, Business Leaders and the Modes of Individual Criminal Responsibility under International Law, 8 J. Int’l Crim. Just. 851 (Jul. 19, 2010), paywall, doi; Norman Farrell, Attributing Criminal Liability to Corporate Actors: Some Lessons from the International Tribunals, 8 J. Int’l Crim. Just. 873 (Ju1. 1, 2010), paywall, doi.

  13. 13.

    Kaleck & Saage-Maaß, supra note 12, at 703–05.

  14. 14.

    John Vidal, Shell Oil Paid Nigerian Military to Put Down Protests, Court Documents Show, The Guardian, Oct. 2, 2011, available online; Environmental Justice Organizations, Liabilities and Trade, The Shell Case in Nigeria (Aug. 2, 2015), available online; Clapham, supra note 7, at 262.

  15. 15.

    Kaleck & Saage-Maaß, supra note 12, at 705.

  16. 16.

    Santiago Oñate, Brigitta Exterkate, Lisa Tabassi & Erwin van der Borght, Lessons Learned: Chemicals Trader Convicted of War Crimes, 2 HJJ 23 (2007), available online.

  17. 17.

    Kaleck & Saage-Maaß, supra note 12, at 707.

  18. 18.

    Victoria Basualdo, Tomás Ojea Quintana & Carolina Varsky, The Cases of Ford and Mercedes Benz, in The Economic Accomplices to the Argentine Dictatorship 159, 169–73 (Horacio Verbitsky & Juan Pablo Bohoslavsky eds., Oct. 2015), paywall, doi; Larry Rohter, Ford Motor Is Linked to Argentina’s “Dirty War,” N.Y. Times, Nov. 27, 2002, available online.

  19. 19.

    Wim Huisman & Elies van Sliedregt, Rogue Traders: Dutch Businessmen, International Crimes and Corporate Complicity, 8 J. Int’l Crim. Just. 803 (Jul. 8, 2010), paywall, doi.

  20. 20.

    Kaleck & Saage-Maaß, supra note 12, at 709; Clapham, supra note 7, at 299–310.

  21. 21.

    Cedric Ryngaert, Litigating Abuses Committed by Private Military Companies, 19 EJIL 1035 (Nov. 1, 2008), available online, doi.

  22. 22.

    Guy Stessens, Corporate Criminal Liability: A Comparative Perspective, 43 ICLQ 493 (Jul. 1994), paywall, doi; Geneviève Giudicelli-Delage & Stefano Manacorda eds., La Responsabilité Pénale des Personnes Morales: Perspectives Européennes et Internationales (2013); Diane Bernard & Damien Scalia, Vingt ans de Justice Internationale Pénale: Les Dossiers de la Revue de Droit Pénal et Criminologie (Jun. 1, 2015); International Commission of Jurists, Complicité des Entreprises et Responsabilité Juridique: Vol. 3 Recours Civils (2008), available online.

  23. 23.

    Kaleck & Saage-Maaß, supra note 12, at 703; Huisman & van Sliedregt, supra note 19; Marjolein Cupido, Mark Hornman & Wim Huisman, Individual Liability for Business Involvement in International Crimes, CICJ (2017), available online.

  24. 24.

    Alien’s Action for Tort, 28 U.S.C. § 1350 (Jun. 25, 1948), available online.

  25. 25.

    Katherine Gallagher, Civil Litigation and Transnational Business: An Alien Tort Statute Primer, 8 J. Int’l Crim. Just. 745 (Jul. 1, 2010), paywall, doi; Sarah H. Cleveland, The Alien Tort Statute, Civil Society, and Corporate Responsibility, 56 Rutgers L. Rev. 971 (2004), paywall; Clapham, supra note 7, at 262–450.

  26. 26.

    Organization for Economic Cooperation and Development, OECD Guidelines for Multinational Enterprises 2011 (Sep. 29, 2011), available online, doi; Jernej Letnar Černič, Corporate Responsibility for Human Rights: A Critical Analysis of the OECD Guidelines for Multinational Enterprises, 4 Hanse L.R. 71 (2008), available online.

  27. 27.

    Clapham, supra note 7, at 201–11.

  28. 28.

    Id. at 213–18.

  29. 29.

    Clapham, supra note 7, at 218–25; see Kaleck & Saage-Maaß supra note 12, at 178-182.

    (An enlightening analysis of the reasons behind the lack of strong international mechanisms).

  30. 30.

    Reinhold Gallmetzer, Prosecuting Persons Doing Business with Armed Groups in Conflict Areas: The Strategy of the Office of the Prosecutor of the International Criminal Court, 8 J. Int’l Crim. Just. 947, 949 (Jul. 1, 2010), paywall, doi.

  31. 31.

    Id. at 950.

  32. 32.

    William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute 425–27 (2nd ed. Nov. 22, 2016); Per Saland, International Criminal Law Principles, in The Making of the Rome Statute 189, 199 (Roy S. K. Lee ed., Sep. 6, 1999), paywall.

  33. 33.

    Mordechai Kremnitzer, A Possible Case for Imposing Criminal Liability on Corporations in International Criminal Law, 8 J. Int’l Crim. Just. 909 (Jul. 1, 2010), paywall, doi; Clapham, supra note 7; Michael J. Kelly, Prosecuting Corporations for Genocide under International Law, 6 Harv. L. & Pol’y Rev. 339 (2012), available online.

  34. 34.

    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, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 25, available online.

  35. 35.

    Julia Geneuss, Jan Philipp Book, Boris Burghardt & Oliver Schüttpelz, Core Crimes Inc.: Panel Discussion Reports from the Conference on ‘Transnational Business and International Criminal Law,’ held at Humboldt University Berlin, 15–16 May 2009, 8 J. Int’l Crim. Just. 957, 964 (Jul. 1, 2010), paywall, doi;

    (With the notable exception of private military firms. Indeed, the personnel of these firms is often on the front line in areas of conflict. Therefore these individuals and the firms risk being directly involved in the perpetration of international crimes, and therefore fall under Article 25(3)(a), that is to say they can be held responsible as principal perpetrators).

    Gerhard Werle, Individual Criminal Responsibility in Article 25 ICC Statute, 5 J. Int’l Crim. Just. 953 (Sep. 1, 2007), paywall, doi.

  36. 36.

    Clapham, supra note 7, at 911.

  37. 37.

    Farrell, supra note 12, at 890.

  38. 38.

    Id. at 893.

  39. 39.

    Id. at 891–92.

  40. 40.

    Id. at 892–93.

  41. 41.

    Mark Hornman & Eelke Sikkema, Corporate Intent: In search for a Theoretical Foundation for Corporate Mens Rea, in Overarching Views of Delinquency and Deviancy: Rethinking the Legacy of the Utrecht School 287 (Ferry de Jong, Miranda Boone, et al. eds., 2015), available online.

  42. 42.

    See Andrea Reggio, Aiding and Abetting in International Criminal Law: The Responsibility of Corporate Agents and Businessmen for “Trading with the Enemy” of Mankind, 5 Int’l Crim. L. Rev. 623, 646 (2005), paywall, doi; Albin Eser, Individual Criminal Responsibility: Mental Elements—Mistake of Fact and Mistake of Law, in The Rome Statute of the International Criminal Court: A Commentary 767, 803 (Antonio Cassese, Paola Gaeta, & John R.W.D. Jones eds., 2002), available online.

  43. 43.

    Clapham, supra note 7, at 908.

  44. 44.

    Farrell, supra note 12, at 882; Vest, supra note 12, at 861; Werle, supra note 35, at 970.

  45. 45.

    Farrell, supra note 12, at 882.

  46. 46.

    Id. at 882.

  47. 47.

    Rome Statute, Art. 25(3)(d)(i).

  48. 48.

    Id. Art. 25(3)(d)(ii).

  49. 49.

    Farrell, supra note 12, at 877; Vest, supra note 12; Eser, supra note 42, at 781.

  50. 50.

    Vest, supra note 12, at 865.

  51. 51.

    Geneuss et al., supra note 35, at 963; Harmen van der Wilt, Corporate Criminal Responsibility for International Crimes: Exploring the Possibilities, 12 Chinese J. Int’l L. 43 (Mar. 1, 2013), paywall, doi.

  52. 52.

    Geneuss et al., supra note 35, at 963; Kaleck & Saage-Maaß, supra note 12, at 722.

  53. 53.

    Kaleck & Saage-Maaß, supra note 12, at 722.

  54. 54.

    Gallmetzer, supra note 30.

  55. 55.

    Geneuss et al., supra note 30, at 963–64.

  56. 56.

    Farrell, supra note 12, at 893.

  57. 57.

    Kaleck & Saage-Maaß, supra note 12, at 722.

  58. 58.

    Margaret M. DeGuzman, How Serious are International Crimes? The Gravity Problem in International Criminal Law, 51 Colum. J. Transnat’l L. 18 (2012), available online.

  59. 59.

    M. Cherif Bassiouni, Challenges to International Criminal Justice and International Criminal Law, in The Cambridge Companion to International Criminal Law 353 (William A. Schabas ed., 2016), paywall, doi; Jacob N. Foster, A Situational Approach to Prosecutorial Strategy at the International Criminal Court, 47 Geo. J. Int’l L. 439 (2016), available online.

  60. 60.

    Kaleck & Saage-Maaß, supra note 12, at 722.

  61. 61.

    Gallmetzer, supra note 30; Patrícia Pinto Soares, Positive Complementarity and the Law Enforcement Network: Drawing Lessons from the Ad Hoc Tribunals’ Completion Strategy, 46 Israel L. Rev. 319 (Nov. 2013), paywall, doi; Nadia Bernaz, An Analysis of the ICC Office of the Prosecutor’s Policy Paper on Case Selection and Prioritization from the Perspective of Business and Human Rights, 15 J. Int’l Crim. Just. 527 (Jul. 1, 2017), paywall, doi.

Delivering Justice in the Next Ten Years: The ICC and its Compatibility with Alternative Justice Mechanisms

Introduction

The International Criminal Court (ICC) is premised on the idea that there are universal wrongs that transcend sovereign borders, yet it has faced criticism for its narrow approach to delivering justice with a criminal trial. Critics argue international criminal trials assume a universal definition of justice that does not always align with the concept of justice recognized by the victims of mass atrocities. Research has shown that justice is inherently subjective, heavily influenced by culture and context, and, as a result, victims of mass atrocities express varied wishes for realizing justice in their communities.1 These may include criminal accountability for perpetrators, truth-seeking and fact-finding to establish a historical account, reparations programs to aid victims in overcoming their abuse, and institutional reform.2

Recognizing the diversity of victims’ needs for justice, the ICC should consider how these needs align with its objectives and when it may defer to alternative justice mechanisms (AJM) that serve these needs in lieu of criminal prosecution. AJM include a variety of non-prosecution based processes and range from absolute amnesty to attempts to hold accountable thousands of perpetrators involved in a conflict.3 AJM, or transitional justice, can be described as justice processes “associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.”4 This comment will focus on two categories of AJM in particular: truth commissions and traditional justice mechanisms.5

In light of its experience so far, should the ICC shift its approach towards AJM in order to improve its effectiveness and legitimacy? To answer this question, the ICC should acknowledge its limitations, evaluate mechanisms for deferral to AJM under the Rome Statute, and consider how AJM may further its objectives.

In Part I of my comment, I will discuss the objectives set forth in the Rome Statute, as well as the constraints the ICC has faced as an international criminal court since its adoption. These include limited financial resources and jurisdiction, challenges effectuating arrest, difficulty obtaining evidence, adversarial nature, and disconnect from harm and suffering of affected communities. I will then argue why, in light of its constraints, the ICC should focus its efforts on holding the most culpable perpetrators accountable and send a symbolic message to the global community. To compliment these efforts, and advance additional criminal justice objectives, the ICC may consider deferral to AJM.

In Part II, I will discuss the four possible mechanisms under the Rome Statute for deferral to AJM. Next, in Part III, I will argue that when considering AJM in lieu of criminal prosecution, the OTP should first consider:

  1. gravity of the crimes;

  2. the stability of the country; and

  3. the will of the people.6

If a proposal survives these preliminary considerations, the OTP should then evaluate the objectives that either criminal prosecution or AJM may advance. Depending on the particular circumstances of the conflict, and the various needs and interests of actors involved, some objectives may be prioritized over others. If the OTP determines that AJM advance international criminal justice objectives, and perhaps do so more effectively, it should seriously consider deferral.

In Part IV, I propose that, as the ICC looks ahead towards its next ten years, it should consider a more open-minded approach to AJM. Empowering domestic mechanisms may not only serve individual victims’ needs for justice, but may also enhance the ICC’s effectiveness by outsourcing its workload, and improve its legitimacy by allowing for non-western approaches to delivering justice.

I. Refocusing the ICC’s Objectives in Light of its Limitations

Even if it is recognized that international criminal trials may not serve victims’ needs for justice, there is ambiguity regarding how AJM comport with the Rome Statute. John Dugard argued the international community’s decision to establish the ICC indicates that “justice, in the form of prosecution, must take priority over peace and national reconciliation.”7 Some argue this tension between objectives can lead to the justice-peace dilemma: forcing the ICC to choose between achieving justice through criminal prosecution or restoring peace to a suffering community.8 Different conflicts, and different actors, may have different needs. For example, when the President of the Democratic Republic of Congo decided to engage with Bosco Ntaganda, a rebel leader indicted by the ICC, he asserted:

Why do we choose to work with Mr. Bosco, a person sought by the ICC? Because we want peace now. In Congo, peace must come before justice.9

The Rome Statute unequivocally specifies a mandate for criminal prosecution. The Rome Statute’s Preamble sets forth the ICC’s objectives, including to end impunity for perpetrators of the most serious crimes of concern to the international community, ensure effective prosecutions, contribute to the prevention of these crimes, and ensure respect for and the enforcement of international justice.10 Further, it provides that the ICC shall be complementary to national criminal jurisdictions over those responsible for these crimes.11 In addition to these objectives set forth in the Preamble, since the Rome Statute’s adoption, the ICC has aimed to include victims in trial proceedings, engage with the communities affected by crimes, provide victim reparations, and ensure lasting peace.12

As the ICC looks ahead to the next ten years, it should recognize the challenges and limitations it has faced as an international criminal court and consider whether AJM may be sufficient in lieu of prosecution to help advance its objectives. Some critics argue that the ICC has attempted to pursue too many objectives, for example: “trying to meet the needs of victims in a trial that is instead conceptualized around finding guilt for a perpetrator” or “producing/presenting ‘universal’ values and standards while also meeting the particular needs of the victims of the particular conflict at hand.”13 Further, the ICC’s failure to achieve all of these objectives has fueled criticisms and decreased its legitimacy.

An international criminal trial is an important mechanism for holding perpetrators accountable to the international community, especially when the accused believe their actions were justified. It may also aid a country emerging out of conflict by assigning individual culpability for crimes, rather than casting blame on an entire population.14 It may signify the end of an oppressive regime and the beginning of a new regime, or deny impunity for the most heinous crimes and perhaps deter future criminals.15

Still, the ICC is constrained in significant ways that impede its effectiveness. First, due to limited financial resources and restricted jurisdiction, the ICC can only investigate and prosecute a number of perpetrators, while mass atrocities usually involve large numbers of actors with varying degrees of involvement.16 For the perpetrators the ICC does decide to pursue, it is difficult to effectuate arrest, collect hard evidence, and gather witness testimony.

Secondly, because of a criminal trial’s adversarial nature, the intent of the prosecution is to establish guilt of the accused. As a result, facts and testimony are marshalled to establish culpability, but not to create a complete, unbiased, and historical account of events. This may be particularly harmful in situations where the conflict involved actors that were both victims and victimizers: for example, child soldiers who were kidnapped and coerced to join a rebel group, the Lord’s Resistance Army (LRA), and then forced to commit violent crimes against civilians. Establishing culpability of a perpetrator in this situation would fail to take into account the circumstances that drove his behavior.

In addition, the ICC focuses predominately on the accused and their direct victims, excluding a large number victims of the conflict from the proceedings. And, while an international criminal trial may hold the perpetrator accountable to the international community and impose punishment, this result does not necessarily help heal and rebuild a broken community. This is especially true where the victims are unfamiliar with the westernized concept of a criminal trial and when their communities have been destroyed as a result of the conflict. There may be many perpetrators who were not tried, but may be able to help the community heal.17 However, these perpetrators are unlikely to initiate doing so on their own.

Keeping in mind these limitations, the ICC should consider how AJM may compliment and advance its objectives. These objectives include not only ending impunity and ensuring effective prosecutions, but also rebuilding and reconciling communities, providing justice to individual victims, and ensuring lasting peace. When the ICC is evaluating whether to defer to AJM, it must consider the needs and interests of various actors, including individual victims, affected communities, the state(s) involved, the region, international community, and humanity.18 It must balance these needs and interests, determine what international criminal justice objectives may be served, and make choices regarding whether AJM may be appropriate in lieu of criminal prosecution.19

II. Compatibility of Alternative Justice Mechanisms with the Rome Statute

As a preliminary matter, the ICC must be able to defer to AJM under the Rome Statute. The Rome Statute, even if it articulates a preference for criminal prosecution, may still allow for deferral to AJM. The Statute leaves open four major possibilities:

  1. United Nations Security Council deferral (Article 16);

  2. ne bis in idem (Article 20);

  3. prosecutorial discretion (Article 53); and

  4. complementarity (Article 17).20

Under Article 16, the United Nations Security Council can request the ICC suspend its investigation or prosecution if it is a threat to international peace.21 This may be inappropriate when the crimes require criminal prosecution under treaty law, but this will be explored in Part III. Under Article 20, the principle of ne bis in idem precludes the prosecution of individuals for the same crime twice; here, AJM would be treated as prior prosecution, thereby thwarting any subsequent ICC proceedings.22 However, because this provision requires trial by another court with due process and criminal responsibility, it would be difficult to qualify AJM as a prior prosecution.23

In addition, under Article 53, the Prosecutor may decide to decline to investigate or prosecute the case in the “interests of justice.”24 When determining whether to open an investigation, the Prosecutor must evaluate whether:

  1. there is a reasonable basis to believe a crime within the jurisdiction has been committed;

  2. the case is admissible under Article 17; and

  3. “[t]aking into account the gravity of the crime and the interests of victims,” the investigation would not serve the interests of justice.25

After an investigation, the Prosecutor may decline to prosecute if:

  1. there is an insufficient legal or factual basis to seek a warrant or summons;

  2. the case is inadmissible under Article 17; or

  3. “taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime,” a prosecution is not in the interests of justice.26

Here, the Prosecutor is given tremendous discretion in terms of what may affect the interests of justice and may choose to defer to AJM on this basis. Additional factors to consider may include: whether there is a duty to prosecute the crime under treaty law, whether there is a justice-peace dilemma, and what are the individual victims’ needs for justice.

Lastly, but perhaps most significantly, under Article 17, AJM could be interpreted to satisfy the complementarity principle, thereby rendering the case inadmissible to the Court.27 The complementarity principle provides that the ICC should complement, but must not supplant, a domestic criminal justice system.28 However, the ICC’s jurisprudence has indicated that not all domestic proceedings are sufficient to render a case inadmissible.29 The ICC may only intervene when the state is unwilling or unable to genuinely investigate or prosecute a case.30 The ICC has not made clear whether domestic proceedings outside of a state’s criminal justice system may be sufficient to qualify as either an investigation or prosecution, but there are many reasons why AJM should.

A broad reading of Article 17 could find that AJM constitutes genuine investigation, prosecution, or a decision not to prosecute, while a narrow reading may find that AJM would not satisfy any of these.31 The Prosecutor may find a State is unwilling to act genuinely if:

  1. it is shielding the accused from criminal responsibility;

  2. there is an unjustified delay in proceedings; or

  3. the state’s proceedings are inconsistent with an intent to bring the person concerned to justice.32

Considering a truth commission that investigates a perpetrator’s actions, holds him individually accountable for his crimes, documents a historic account of his wrongs, and imposes a punishment, the prosecutor may determine that it constitutes a genuine investigation, prosecution, or investigation, and also a decision not to prosecute. A less clear situation may be a tribal ceremony that publicly shames a perpetrator, forces him to confess his wrongs and beg forgiveness, and imposes no punishment. In either of these scenarios, the Prosecutor may decide that the State is shielding the accused from responsibility or that their mechanism is inconsistent with an intent to bring the accused to justice. Here, justice may imply different meanings to different actors.

Given these possibilities, it seems that deferral to AJM may be most feasible under Article 53 or Article 17. When determining whether to interpret one of these provisions to allow deferral to AJM, the OTP should consider a number of factors, discussed in the next section.

III. Determining Whether to Defer to Alternative Justice Mechanisms

If a State proposes to forgo prosecution in favor of AJM, the OTP should first consider three preliminary factors:

  1. the gravity of the crimes committed;

  2. the stability of the State proposing the AJM; and

  3. the will of the people.33

The OTP should then consider whether AJM advance international criminal justice objectives, including retribution, deterrence, expressivism, and restorative justice.34 The OTP should only defer to AJM if these objectives are advanced comparably to criminal prosecution.35 In some cases, AJM may advance these objectives even more effectively than criminal prosecution. Deferral to AJM not only allows communities to take ownership in the process, but it also may encourage a State “to use autochthonous forms of justice and peace that could lead to greater confidence in the government.”36 There may be competing objectives, and it will be the Prosecutor’s role to decide which may take priority over others.

To illustrate how competing objectives may materialize, it is helpful to consider the LRA conflict, where AJM were suggested as an alternative to criminal prosecution. In response to years of horrific attacks against civilians by the LRA, a small rebel group in northern Uganda, the Ugandan government attempted peace negotiations and eventually granted amnesty and a reintegration package for rebels fighting against the government.37 Because these efforts were unsuccessful, Uganda’s President Museveni asked the ICC to investigate and prosecute the LRA.38 Although Museveni initially indicated that LRA leaders would be denied amnesty, he subsequently offered immunity and asked the ICC to drop its charges against LRA leaders if they agreed to Ugandan alternative justice mechanisms.39

The OTP was forced to either issue the arrest warrants, and risk prolonging the conflict, or drop the charges, and trust a truth commission and/or traditional mechanisms to hold the accused accountable. Under Ugandan’s alternative, the accused LRA leaders would not face criminal prosecution, but, instead, a truth commission and/or tribal justice known as mato oput, which Museveni argued would effectively hold the accused accountable and offer victims compensation.40 While the arrest warrants might signal the gravity of these crimes to the international community, and perhaps eventually led to retribution and deterrence, the traditional mechanisms might bring peace to the region, reveal a complete account of what happened, provide justice for individual victims, and reintegrate communities.

A. Preliminary Considerations: Gravity of the Crimes, Stability of the State, and the Will of the People

1. Gravity of the Crimes

First, under treaty law and arguably customary international law, the crimes of genocide, torture, and grave breaches of the Geneva Conventions require criminal prosecution.41 However, crimes against humanity and war crimes do not require criminal prosecution under international law.42 The OTP should therefore only consider deference to AJM for crimes against humanity and war crimes that do not constitute grave breaches. Beyond this threshold determination, the OTP should also consider the scale and nature of the crimes, the manner of their commission, and their impact.43

In the LRA conflict, the accused were charged with war crimes and crimes against humanity, predicated on cruel and inhuman treatment short of torture; thus, Uganda may be required to prosecute some, but not all, of these crimes under treaty law.44 Moreover, the crimes’ scale, manner, and impact are alarming: they have lasted for decades, displaced millions, and included abducting children, forcing them to become soldiers or sex slaves, and forcing abductees to mutilate, maim, rape, and kill.45

2. Stability of the State

Secondly, a State must be stable, or at least working towards a restoration of order, for it to have the capacity to effectively implement AJM. Stability includes: a governing document approved in a democratic order, demonstrated respect for human rights, and a functioning judicial system.46 When Museveni requested that the Prosecutor drop the ICC charges, the Ugandan government was arguably stable enough to support AJM, although there was still doubt whether the accused would actually be forced to participate in the proceedings.

3. The Will of the People

Third, the ICC should consider the will of the people affected by the conflict. This includes not only the victims, but anyone else in society who may have been impacted, and may require outreach across the State. The ICC has made tremendous efforts to include victims in its proceedings, but it is limited by its geographical distance from communities affected and the reluctance of victims to participate in unfamiliar trial proceedings.

To ascertain the will of the people, one scholar suggests the ICC build upon its current national outreach efforts and add a referendum.47 The national outreach program, through radio and television programs, should inform the public about the role of the ICC, as well as alternative options for accountability.48 A challenge here, however, will be securing sufficient funding to support such a large campaign that reaches the entire population. Moreover, even when the OTP engages in comprehensive efforts to hear input from victims, the results may not be clear.

In regards to the LRA conflict, the OTP conducted over twenty-five missions to Uganda to hear from the local communities.49 Nonetheless, the will of the people was uncertain regarding whether criminal prosecution or AJM was preferred. Mato oput comes from the Acholi tribe in northern Uganda, and involves drinking a bitter brew as part of a long process and ritual ceremony to reconcile broken relationships between clans.50 The process may take years, even decades, and requires that the perpetrator admit his wrongs and show remorse, the truth of what happened is established, and compensation is given to victims.51

Individuals within the tribe expressed conflicting views about whether mato oput is favorable to criminal prosecution and, in addition, many Ugandan victims are not Acholi and have different tribal practices.52 Data from the region indicated that “AJM is supported, but not necessarily to the exclusion of prosecution.”53 Moreover, mato oput was never intended to deal with mass atrocities, particularly where many victims do not know their attackers, and also where the perpetrators believe their actions were justified.54 Another limitation of the process is that is often excludes women and, throughout the conflict, women suffered tremendous violence and suffering.55 Although there was no clear consensus regarding the will of the people, mato oput may have been adapted to better serve the victims’ desires.

B. Advancing International Criminal Justice Objectives

If AJM satisfy the preliminary considerations, then the Prosecutor should consider how they might advance several international criminal justice objectives. For each objective, I will briefly explore how both criminal prosecution and AJM may advance it. For a proposed AJM to be sufficient, it should advance each of these goals comparably to criminal prosecution.

1. Retribution

Retribution generally refers to individual culpability and punishment. It is based on the idea that both victims and society want those who have committed crimes to be held accountable and punished accordingly.56 This is frequently cited as a central rationale for criminal prosecution, especially where perpetrators are accused of the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity, and crimes of aggression.57 This objective is often critiqued in this context, however, because of the extreme selectivity of the accused and the tremendous challenge to effectuate arrest. This weakness materialized in the LRA conflict when, after issuing arrest warrants, none of the accused were actually captured. Here, pursuing criminal prosecution hardly advanced any retributive objective.

AJM may further retribution if it requires a perpetrator to fully disclose his crimes and accept responsibility for his actions; enforces some form of punishment, such as community services, fines, reparations, shaming, or removal from office; and if that punishment is somewhat proportional to the crime, as long as not: “woefully short of […] the ICC’s disproportionately weak punishment.”58 In many traditional justice mechanisms, shame plays an important role in administering individual accountability. Both mato oput and fambul tok (“family talk” in Sierra Leone) involve perpetrators standing publicly in front of their community, confessing their wrongs, and asking for forgiveness.59 The same may be argued for truth commissions. Although there may be no punishment in truth commissions, mato oput would include victim reparations. The most frequent criticism is that AJM are insufficient to hold accountable and punish offenders guilty of the most heinous crimes.

2. Deterrence

Deterrence refers to the prevention of future crimes, including both general deterrence (preventing crimes by others) and specific deterrence (preventing additional crimes by the accused). Both international criminal trials and AJM have uncertain deterrent effects. It is not clear whether a trial in the Hague for a crime of genocide will prevent future perpetrators from committing genocide, or preent that particular perpetrator from committing genocide again once he is released. Likewise, it is not clear whether AJM will deter future crimes outside of that community, or even within it. In either mechanism, “deterrence requires a rational actor making calculated decisions based, in least in part, on the likelihood of such as ICC prosecution or AJM”; yet it is unlikely that the perpetrators of the gravest crimes in the world consider the consequences before committing them.60 Nonetheless, AJM may have deterrent effects when perpetrators truly feel shame over their actions.

3. Expressivism

Expressivism refers to a “moral message generally consistent with societal values” issued by a respected voice of authority to a general audience.61 The ICC advances expressivist objectives through investigating and prosecuting crimes and thereby signaling to the global community that such crimes are morally condemnable. Some scholars have even argued:

Individual criminal trials—whether national, international, or a hybrid—have become the benchmark of accountability against which all other forms of reckoning, such as truth commissions, must be judged.62

Even if the ICC is limited in the number of perpetrators it can pursue, its efforts to investigate and prosecute those individuals serve an important symbolic function.

Similarly, AJM may have an expressivist function by sending a message to the affected community that the crimes at issue were morally wrong, however it is less certain whether this message would resonate with the global community. Even within the community, victims and perpetrators may be able to reconcile, but it not clear if AJM would effectively communicate any moral condemnation.

4. Restorative Justice

Restorative justice includes objectives such as reconciliation, restitution, compensation, and rehabilitation. The ICC advances restorative justice through its unprecedented inclusion of victims in trial proceedings and establishment of the Trust Fund for Victims.63 It advocates for those affected by crimes to have a sense of ownership in the process, engages with affected “communities directly, in local languages, holding conversations and consultations, responding to questions, addressing concerns and providing people with information,” and works with local intermediaries who support its efforts in the field.64 Nevertheless, it is limited by its physical distance from affected communities, as well as the hesitation of many victims to come forward and participate in legal proceedings.

AJM, on the other hand, may advance restorative justice through establishing an accurate and historical account of the events, face to face reconciliation between victims and perpetrators, reparations for victims, and community reintegration. Truth commissions are particularly useful for uncovering a complete, accurate, and unbiased historical account of what happened. In most post-conflict situations, victims want a historical account before any retribution. In addition, AJM may have tremendous healing power. With fambul tok in Sierra Leone, relationships that had been destroyed during the civil war were mended once perpetrators participated in the ceremony and admitted that their actions were wrong and condemnable. Two reconciled best friends shared:

We have something the war did not destroy. That is the cultural of forgiveness.65

IV. Next Steps Towards Evaluating Alternative Justice Mechanisms

While a criminal trial serves the important objectives of holding the worst perpetrators accountable and symbolizing the gravity of these abuses to the international community, AJM may compliment these objectives and serve others. An ideal approach to achieving justice may include a combination of criminal prosecution for the most culpable perpetrators, truth commissions, and traditional justice mechanisms. For example, after the civil war in Sierra Leone, a High Court tried the top commanders, while a truth commission aimed to gather a historical account of the conflict. On top of these efforts, John Caulker, a Sierra Leone human rights activist, asked communities what they needed in order to heal? In response, he implemented fambul tok to reconcile and rebuild broken communities.66

In the LRA conflict, the OTP opted to proceed with its arrest warrants, arguing that the LRA’s attempts to reach a peace deal in exchange for amnesty amounted to blackmail. Although prosecution would continue with the top leaders, lower level perpetrators could face Ugandan alternative justice mechanisms instead.67 The ICC’s insistence on criminal prosecution dissuaded the accused from cooperating in peace negotiations, and as of today, none of the accused have been captured and tried. This situation exemplifies not only the challenges the ICC faces in ensuring effective prosecutions, but also how AJM may be more effective in particular circumstances. Nonetheless, one could argue the ICC’s arrest warrants still had important symbolic value to the global community, particularly because of how grave the crimes were, and may have satisfied victims of the conflict who preferred criminal prosecution to traditional mechanisms.

The differing concepts of justice around the world make the ICC’s job of achieving it all the more complicated. This is especially true in light of its financial and jurisdictional limitations and its foundation as a criminal court. Not only may the ICC’s encouragement of and deferral to AJM in appropriate circumstances better serve victims’ needs for justice, but it would also improve the effectiveness of the ICC and increase its legitimacy in the eyes of the affected communities. For these victims, justice in The Hague may mean little, but justice through a ritual in their community may mean a lot more. Criminal prosecution is still central to the ICC’s mandate and should be pursued enthusiastically to end impunity and act symbolically. AJM, however, may be deferred to in particular circumstances where international criminal justice objectives may be better served. Through these efforts, over the next ten years, the ICC can better serve justice to many around the world.

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

  1. 1.

    Marieke de Hoon, The Future of the International Criminal Court: On Critique, Legalism and Strengthening the ICC’s Legitimacy, 17 Int’l Crim. L. Rev. 591, § 2 (2017), available online, doi.

  2. 2.

    Id.

  3. 3.

    Allen S. Weiner, Ending Wars, Doing Justice: Colombia, Transitional Justice, and the International Criminal Court, 52 Stan. J. Int’l L. 211, 222 (Aug. 25, 2016), available online.

  4. 4.

    Ruti G. Teitel, Transitional Justice Genealogy, 16 Harv. Hum. Rts. J. 69 (2003), available online.

  5. 5.

    (Although amnesties are often discussed in the context of AJM, they are beyond the scope of this comment. I will instead focus on two categories of AJM, truth commissions and traditional justice mechanisms, that ensure some degree of accountability, even if it is informal).

  6. 6.

    Elizabeth B. Ludwin King, Does Justice Always Require Prosecution? The International Criminal Court and Transitional Justice Measures, 45 Geo. Wash. Int’l L. Rev. 85, § 5 (Jan. 1, 2013), available online.

  7. 7.

    Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanism, 23 Conn. J. Int’l L. 209, 237 (2008), available online.

  8. 8.

    See Weiner, supra note 3.

  9. 9.

    King, supra note 6, at 93.

  10. 10.

    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, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, available online.

  11. 11.

    Id.

  12. 12.

    Interacting with Communities Affected by Crimes, ICC, [hereinafter Interacting with Communities], available online (last visited Jun. 23, 2018).

  13. 13.

    de Hoon, supra note 1, § 3; see also Nancy A. Combs, From Prosecutorial to Reparatory: A Valuable Post-Conflict Change of Focus 36 Mich. J. Int’l L. 219 (2015), available online.

  14. 14.

    King, supra note 6.

  15. 15.

    Id. at 91.

  16. 16.

    See de Hoon, supra note 1.

  17. 17.

    Id.

  18. 18.

    Id.

  19. 19.

    Id.

  20. 20.

    Keller, supra note 7, at 238.

  21. 21.

    Rome Statute, supra note 10, at Art. 16; see also id.

  22. 22.

    Rome Statute, supra note 10, at Art. 20; see also Keller, supra note 7, at 238.

  23. 23.

    Rome Statute, supra note 10, at Art. 20.

  24. 24.

    Id. Art. 51; see generally Thomas Hethe Clark, The Prosecutor of the International Criminal Court, Amnesties, and the “Interests of Justice”: Striking a Delicate Balance, 4 Wash. U. Global Stud. L. Rev. 398 (Jan. 2005), available online.

  25. 25.

    Rome Statute, supra note 10, at Art. 53.

  26. 26.

    Id.

  27. 27.

    Id. Art. 17; see also Keller, supra note 7, at 238; King, supra note 6, at 111.

  28. 28.

    Keller, supra note 7, at 252.

  29. 29.

    See Kaveri Vaid, What Counts as “State Action” Under Article 17 of the Rome Statute? Applying the ICC’s Complementarity Test to Non-Criminal Investigations by the United States into War Crimes in Afghanistan, 44 N.Y.U. J. Int’l L. & Pol. 573, 574 (2012), available online.

  30. 30.

    Rome Statute, supra note 10, at Art. 17.

  31. 31.

    See Keller, supra note 7, at 255.

  32. 32.

    Rome Statute, supra note 10, at Art. 17.

  33. 33.

    King, supra note 6.

  34. 34.

    Keller, supra note 7, at 260.

    (“There is general agreement that the purpose or mandate of the ICC, at least in theory, includes retribution, deterrence, expressivism, and restorative justice, especially reconciliation.”).

  35. 35.

    (Several comprehensive and thoughtful frameworks have been proposed to evaluate AJM, with many similarities amongst them. I found a combination of proposals by Linda M. Keller and Elizabeth B. Ludwin King to cover the factors I believe are central to considering AJM’s compatibility with the ICC. I have proceeded with an analysis here to demonstrate one framework that may serve as a guide).

  36. 36.

    King, supra note 6, at 91.

  37. 37.

    Keller, supra note 7.

  38. 38.

    Id.

  39. 39.

    Id.

  40. 40.

    Id.

  41. 41.

    King, supra note 6, at 88–89.

  42. 42.

    Id.

  43. 43.

    Id. at 114.

  44. 44.

    See Keller, supra note 7.

  45. 45.

    Id. at 1.

  46. 46.

    King, supra note 6, at 109.

  47. 47.

    Id. at 112.

  48. 48.

    Id.

  49. 49.

    Id.

  50. 50.

    See Keller, supra note 7, at 231.

  51. 51.

    Id. at 230–31.

  52. 52.

    Id.

  53. 53.

    Id.

  54. 54.

    Id. at 232–35.

  55. 55.

    Id. at 232–33.

  56. 56.

    Weiner, supra note 5, at 214.

  57. 57.

    See generally Alexander K.A. Greenawalt, International Criminal Law for Retributivists, 35 U. Pa. J. Int’l L. 969 (Oct. 13, 2014), available online.

  58. 58.

    Keller, supra note 7, at 267.

  59. 59.

    Id. at 230–37; Fambul Tok (Catalyst for Peace 2011), paywall.

  60. 60.

    Keller, supra note 7, at 272.

  61. 61.

    Id. at 273–74.

  62. 62.

    de Hoon, supra note 1.

  63. 63.

    Interacting with Communities, supra note 12; see also Victims Voices, ICC, available online (last visited Jun. 23, 2018); Trust Fund for Victims, ICC, available online (last visited Jun. 23, 2018).

  64. 64.

    Interacting with Communities, supra note 12.

  65. 65.

    Fambul Tok, supra note 59.

  66. 66.

    Id.

  67. 67.

    Keller, supra note 7, at 250.

While I agree with the proposal by Prof Sluiter that the ASP must utilise its powers to sanction non cooperating states through the mechanisms provided for under article 112 of the statute, I still believe that for that to work the whole ICC framework on cooperation has to change.

Prof Sluiter's proposal takes into account the challenges of cooperation by contracting States, leaving out non-contracting states. The Al Bashir cases have shown that non-contracting states to the Statute are also on the forefront of non cooperation with decisions of the ICC.

My proposal would be that when looking at ways of dealing with non-cooperating states, any proposal for reform must be comprehensive enough to cover both contracting and non-contracting states to the statute. A framework that targets both contracting and non-contracting states can be possible if the decision to cooperate has the blessing of the UNSC, because it is those cases that involves non-contracting states that seem to be problematic.

Cooperation by States, in the case of Al Bashir, as Prof. Sluiter once argued, cannot easily work, as the model of cooperation that was established under that refferal did not impose an obligation on all states viz UN Member States. The request for cooperation was not clear and comprehensive enough to impose an obligation on all states. Lessons can be learnt from the weakness that have so far been experienced in referral of the situation in Sudan so that future cases are clear enough on the model of cooperation that will govern the prosecution of such a case.

If the fight against international crimes is to be successful, then there is need for the UNSC to establish a tight cooperation regime when referring situations to the court (like the model established under the ICTY and ICTR) so that, if states fail to comply, sanctions must follow. If it is a contracting state that fails to cooperate then the framework of the ASP may be used. If it is non-contracting states, then the UNSC would come in and impose sanctions. of course, another burning issue is whether sanctions, in themselves, are deterrent enough to compel states to cooperate?

My other proposal is that the Court must establish a framework on supervision of compliance, where it actively supervises how states implement its decisions. Lessons can be drawn from the process of supervision of compliance established under the Inter-American Court of Human Rights and the European Court of Human Rights. I will elaborate later.

To create an independent middle that can negotiate for victims, I believe those resource as the national security state parties are aware requires the national security counsel for state parties to partake in that process, whether it be non icbc state members or non United Nations state members,

I also believe having the international rights of the child(1990) be a specific tool in recognizing the differences between victims, and those victims when within icbc jurisdiction to be treated as different as they are- duel prosecution and examinations concurrently in the trial, or peace negotiation.

Two Key Reforms: Break Up the ICC into Regional Chambers and Allow the ICC to Impose Monetary Fines on Recalcitrant Contracting Parties

The predicaments which the ICC appears to be facing demand radical solutions, nothing less will be adequate. While it is clear that the world needs the ICC to put an end to impunity, what the world needs may not be enough for the ICC to survive in turbulent times. It is sad that a not insignificant number of contracting parties simply ignore their obligations and duties towards the ICC, a topic to which we will come back. However, this is a development that most international organizations face, especially international institutions whose mandate includes passing judgment on the behaviour of heads of state and other dignitaries. The ICC being arguably in a state of protracted infancy has been experiencing difficulties in tackling it.

The solution which is proposed here is how to make the ICC more relevant to its intended users. And it is rather simple proposal: to do away with the unitary nature of the ICC and create what would, for present purposes, be called ‘ICC regional circuit chambers’. The gist of the proposal is that an ICC divided into branches would be a more effective and more appealable institution. Each regional branch will have a dedicated bench and a dedicated Prosecutor. The regional approach has distinctive advantages while the proceedings maintain their impartiality and independence. The Hague may be the ‘judicial capital of the world’ and the Dutch government may be very proud of this achievement, but a transnational court of justice is all about offering legal services to a certain clientele and, therefore, the former ought to adapt to the needs, to the perceptions and to the wishes of the latter.

Having said that, it is not argued that there should only be one International Criminal Court, namely the one established under the Rome Statute. There could be more than one or more than two; competition is a very good thing and usually it results in prosperity. If tomorrow a new transnational criminal court were to emerge (it does not necessarily have to emerge from Africa), this should be interpreted as a sign of strength of the global system (unless of course the new institution was established for no other reason but to disguise impunity by seemingly taking action to fight it). But this is perhaps a different discussion and one that many might feel to be irrelevant and inappropriate.

What follows is an overview of the proposal to break down the ICC into ‘regional circuit chambers’ and of the procedures which will be required to materialize it.

This proposal, which is based on the circuits (districts) existing in the federal court system of the USA, takes stock of Article 39(2) of the Rome Statute. It stipulates that the ICC’s judicial functions shall be carried out by Chambers and that the simultaneous constitution of more Chambers is not precluded, if so required by the efficient management of the workload. Each ICC regional circuit chamber would correspond and be responsible for alleged crimes committed in the territory of the contracting parties belonging to a specific continent (for purposes of convenience, Oceana will be part of the Asian circuit). Each ICC regional circuit chamber would follow the current ICC institutional structure, i.e. it would comprise a Pre-Trial Chamber, a Trial Chamber, an Office of the Prosecutor, and a Registry. Its seat would be in the territory of one the contracting parties in the respective continent, while its judges, the Prosecutor, and the Registrar would also have to be nationals of the contracting parties of that continent. According to Article 36 of the Rome Statute, the ICC has a bench of 18 judges. As this number would probably prove to be inadequate (one of them would have to serve as President), the Article 36(2), the provision on simplified amendment of the Rome Statute, would be followed to allow for a sufficiently large bench. Thus, pursuant to Article 36(2)(b), the proposal to augment the number of judges will be considered adopted, if approved by a two thirds majority in the ASP. The relevant decision may enter into force immediately after securing this majority.

Each ICC regional circuit chamber’s Prosecutor would have the rank of deputy Prosecutor. Article 42(2) of the Rome Statute does not lay down the number of deputy Prosecutors (currently there is only one) and, consequently, there is no need to amend it. As deputy Prosecutors are entitled to carry out any of the acts required of the Prosecutor under the Rome Statute, there would appear to be no obstacles to perform all prosecutorial duties at the level of each ICC regional circuit chamber. Finally, as far as the ICC itself is concerned, it would play the role of a ‘supreme court’ hearing appeals, cases of importance referred to it by one of the regional circuit chambers and solving any instances of concurrent jurisdiction among them.

The required amendments to the Rome Statute to allow the setting up of the regional circuit chambers would be based on Article 122 thereof, which deals specifically with changes of an exclusively institutional nature. A single contracting party may propose them. They would then have to be accepted by consensus, failing which, the ASP or a Review Conference must adopt them by a two-thirds majority of all contracting parties. Under Article 122(2), amendments shall come into force six months after their adoption (i.e. there exists no separate ratification process at the domestic level of contracting parties) and will become binding on all of them, meaning that those which disagreed must follow the wishes of the majority.

As regards the principle of complementarity, which applies to the ICC’s operation, the regional circuit chambers would also be bound by it. It could be counter-argued that the setting up of ICC regional circuit chambers presupposes that all states of the world have already become contracting parties to the Rome Statute. Since the ICC has not yet achieved universality, this proposal is unattainable. True as this submission is, there is no doubt that presently the ICC constitutes a self-contained transnational regime with its own decision-making body (the ASP), where almost 65% of the UN membership participates. This allows the ICC to claim a considerable degree of legitimacy as the principal international criminal justice institution, able and willing to act when no domestic criminal court can address the commission of very serious international crimes.

This proposal aims at offering a (at least theoretical) proposition to ensure that the ICC is more user friendly (if this term could be used) and adapts to the developing needs of its contracting parties, and of the world community at large. For example, the regional circuit chamber for Africa would be tasked with investigating, prosecuting and holding trials for qualifying criminal behaviour allegedly committed within the territory of African contracting parties and of those which may accede to the Rome Statute in the future. Moreover, being regional in nature and in scope, it would be able to take into consideration African custom, legal traditions, societal values, and rituals, provided that they are not in conflict with peremptory rules of international law, including the negation of slavery, the total prohibition of human trafficking and similar practices, the full equality among all people (including men and women), etc.

The application of regional ethics, practices and conventions should remove the bias held apparently by many that the ICC operates to promote Western domination. But this cultural relativism, welcomed as it might be, should also have its limits. The new role of the ICC, as akin to a ‘supreme court’, would, inter alia, focus on safeguarding that similar situations are not treated dissimilarly by regional circuit chambers, while the invocation of regional traditions and norms would not a priori be treated as grounds for mitigation. Indeed, Article 21(1)© of the Rome Statute, titled ‘Applicable law’, permits the ICC to take into consideration and apply, inter alia, general principles of law deriving from the domestic legal system of contracting parties, “provided that those principles are not inconsistent with [the ICC] Statute and with international law and internationally recognized norms and standards”.

As mentioned in the beginning of this Comment, there exists a sizable number of ICC contracting parties which are refusing, either expressly or through deliberate inaction, to comply with their obligation to cooperate with the Court, to execute the arrest warrants issued, etc. This is a reality and apparently there are no easy solutions: the ASP does (almost) absolutely nothing to address it (as a political organ it is usually lost in politics) and in those cases where the UNSC might have done something (namely, Darfur and Libya) the Prosecutors’ pleas for prompt and decisive action fall on deaf ears. And we all know how indifferent the UNSC can be to pleas for deeds.

The question, therefore, arises how the ICC could by itself respond pro-actively to this challenge. The obvious reaction, namely to adopt yet another decision registering the non-compliance of contracting party X, Y or Z, to inform the ASP and (if applicable) the UNSC as well and ask them to take specific measures against the recalcitrant parties, have been tried and failed. My suggestion will be for ICC, especially in cases of repeated non-compliance leading to more crimes being committed, to impose monetary sanctions (fines) against such parties. All proceeds from those fines will be made available to the Trust Fund of Victims.

For this proposition I have particularly in mind the ability of the European Court of Justice to inflict fines when an EU Member State has not complied with a previous Court judgment.

Assuming that this proposition does not require an amendment of the Rome Statute, but it could be added to the Court Rules of Procedure and Evidence, I would further argue that Article 51(3) of the Rome Statute might apply. It reads as follows: “After the adoption of the Rules of Procedure and Evidence, in urgent cases where the Rules do not provide for a specific situation before the Court, the judges may, by a two-thirds majority, draw up provisional Rules to be applied until adopted, amended or rejected at the next ordinary or special session of the Assembly of States Parties”. Thus, considering that a broad interpretation would suggest that a contracting party’s non-compliance with an obligation or with a duty constitutes an “urgent case”, effectively this would be and could be treated as a specific situation not provided for in the Rules. Why it is an “urgent case” should not be difficult to be justified, for example it could be argued with persuasion that the ICC’s effectiveness is compromised. Should this construction stand, the bench should be able, acting on a two-thirds majority, to draw up provisional Rules to be applied until they are adopted, amended or rejected at the next ASP session.

Even if the ASP does nothing to deal with the pro-active stance taken by the Court, at least the Court would have recorded its willingness to do something about what it considers to be recalcitrant parties. I believe that now more than ever in the past the Court should show its teeth before it becomes an atrophic multilateral institution, which million upon millions of people have come to associate with the opposite of evil .

Response to the question: In the Rome Statute’s third decade, what key reforms could make the international criminal justice project stronger, more efficient, and more effective?

Our world is witnessing developments of new technologies. the ICC, to be stronger, more efficient, and more effective need to adapt itself to these technologies. They have comprehensive effects on the operations of the Court. There are some questions which need to be answered by the Court through its case-law or amending the Rules of Procedure and/or the Statute. some questions may be related to the procedural questions and some to the substantive aspects. Is the ICC competent to prosecute and try the international cyber- space crimes (Icsc)? How the Court may use the cyber-space for establishing the crimes? How the perpetrators may use the cyber-space for commission of international crimes? If the Court is to be a stronger, more efficient and more effective it needs to answer such questions.