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. ↩

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). ↩

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. ↩

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. Int’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. ↩