The Decentralized Accountability Question — Comments

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Comment on the Decentralized Accountability Question: “How, and to what extent, should the ICC’s Office of the Prosecutor engage with national, regional, or other authorities or organizations to support accountability for those accused of grave crimes?”

Expanding the Landscape of International Justice: Obstacles to Universal Jurisdiction and the Potential Role of the ICC

I. Introduction

Since its inception in 1998, the International Criminal Court (ICC) has aimed to bring justice to the gravest international crimes in the world. The Court is the first and only permanent international criminal court with the jurisdiction to investigate and prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression.1 Despite its unique and valuable ambition, the ICC has faced ample criticism for being unable to sufficiently realize expectations.

The Court has been widely accused of bias, due to its emphasis on predominantly Western ideals of justice and disproportionate prosecutions of situations in African countries.2 The ICC has also been criticized for inefficiency, due to long case proceedings, difficulty implementing arrests, and its meager record of just ten convictions in over twenty years.3 Others have disparaged the ICC for unduly imposing on state sovereignty.4 The Court faces many barriers in carrying out successful prosecutions but should continue to reevaluate its best practices and attempt to maintain legitimacy as a unique institution in the space of international criminal justice.

Over time, the landscape of international justice has seen the development of new forums for justice to fight against grave human rights violations. As the ICC faces a large, complex caseload, it may benefit from narrowing its focus to more thorough yet limited investigations. In turn, other avenues of justice could fill the gaps in preventing global impunity, particularly in the form of universal jurisdiction. In recent years, states have increasingly asserted and exercised universal jurisdiction in an effort to secure justice against the most heinous international crimes.5 Universal jurisdiction is the ability and obligation of domestic judicial systems to investigate and prosecute grave international crimes (such as war crimes, crimes against humanity, torture, and genocide), even if they were not committed on the state’s territory and did not involve one of its nationals.6

While it presents a new potential avenue for international justice, universal jurisdiction faces barriers and criticisms of its own. Universal jurisdiction is controversial and has sparked widespread criticism for its sovereignty violations, political bias, and infringement on immunities.7 States have also struggled to effectively carry out universal jurisdiction cases as there are ample practical obstacles to prosecuting crimes which occurred in another country, such as accessing crime scenes and locating witnesses.8

Nonetheless, as the ICC struggles to adequately combat international crimes, universal jurisdiction is a viable alternative for national authorities to take on some of the burden in prosecuting perpetrators of grievous human rights abuses. Further, considering the experience and institutional capacity of the ICC, the Court has the ability to provide valuable help and resources to national authorities exercising universal jurisdiction, to the benefit of both parties.

In this comment, I will discuss the obstacles that arise for national authorities exercising universal jurisdiction and how the ICC can help address them. In Part II, I provide a brief background on the legal basis for universal jurisdiction, the ICC, and the Rome Statute. In Part III, I highlight the primary challenges facing national authorities exercising universal jurisdiction, with an emphasis on those challenges which the ICC may be able to address. In Part IV, I outline the potential role for the ICC in assisting national authorities exercising universal jurisdiction to overcome these challenges. I conclude that the most realistic, impactful areas of assistance will likely be training and evidence sharing. While there are many challenges, increased cooperation between the ICC and national authorities exercising universal jurisdiction would greatly benefit the growing landscape of international justice.

II. Background: Universal Jurisdiction and the ICC

While universal jurisdiction is politically controversial, particularly for its infringement on state sovereignty, the concept is rooted in international law. It was first codified in the 1949 Geneva Conventions in relation to war crimes, which was ratified by 194 states.9 It’s also codified and obligatory in the 1973 Convention against Apartheid, the 1984 Convention against Torture, and the 2006 Convention against Enforced Disappearance.10 Further, universal jurisdiction is generally considered acceptable under international customary law for particularly heinous crimes, such as genocide and crimes against humanity.11

The ICC attempts to address many of the same grievous crimes as universal jurisdiction. The Rome Statute grants the ICC jurisdiction over the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.12 However, the Court’s jurisdiction is limited to the territories of states which are a Party to its Statute (or states which accept jurisdiction), or where the matter was referred by the United Nations Security Council.13 Moreover, only 123 countries are States Parties to the Rome Statute.14 Universal jurisdiction presents an opportunity for national authorities to take international justice into their hands and alleviate some of the caseload for the ICC, as well as reach territories that the ICC would not normally be able to pursue under its limited jurisdiction. The ICC has the potential to help these national authorities as it has more experience in pursuing grave human rights crimes and can lend valuable resources and expertise.

III. Obstacles in Exercising Universal Jurisdiction

In assessing how the ICC may assist states exercising universal jurisdiction, I first examine the primary obstacles facing these states. While there are many obstacles facing national authorities, I will primarily focus on those which the ICC could potentially assist with.

A. Legal Obstacles

There are numerous legal challenges to asserting and carrying out prosecutions using universal jurisdiction. Many states lack adequate legislation to assert universal jurisdiction. While almost two-thirds of all states have legislation permitting universal jurisdiction over certain grave international crimes, such as war crimes, few have jurisdiction over all, and many lack adequate specified punishments.15 Additional important principles, such as the criminal responsibility of commanders and superiors are often absent from legislation.16 Even states with adequate legislation are often hindered by foreign amnesties and other measures of impunity, particularly immunities for heads of state and government officials.17 These impunities are inconsistent with the Rome Statute’s emphasis on preventing impunity regardless of official capacity.18

Domestic justice systems also struggle to exercise universal jurisdiction because there is a lack of mutual legal assistance in the international justice system. States where the crime occurred have no obligation to assist the forum state with an investigation, allow entry into crime scenes, provide evidence, or extradite suspects.19 Additionally, collaboration is not always possible when perpetrators are part of state governments or militaries due to conflicts of interest in carrying out fair investigations. There are few international treaties regarding mutual legal assistance and they have limited scope with broad grounds of refusal, such as double criminality requirements and statutes of limitation.20 Additionally, these grounds of refusal are typically evaluated by political officials rather than courts, creating questionable bias, particularly in the absence of international monitoring.21

B. Political Obstacles

National authorities also face political obstacles in exercising universal jurisdiction. Primarily, states often lack the political will to implement universal jurisdiction. International crimes committed abroad are typically not at the highest priority for national police, prosecutors, or political officials. The participation of political officials in judicial decision-making also often leads to political interference with exercising universal jurisdiction.22 In many countries, political officials must approve initiation of criminal investigation or prosecutions based on universal jurisdiction and decisions on whether to extradite or cooperate.23 This brings clear issues of bias and undermines the legitimacy and success of universal jurisdiction. The continued use of military courts for crimes under international law also creates concern about potential political interference.24

C. Practical Obstacles

States exercising universal jurisdiction also face major evidentiary challenges, as they are investigating crimes which did not occur within their own territory. Access to crime scenes is particularly difficult to achieve, especially with countries that are unwilling to cooperate or have political interference.25 Forensic evidence is lacking in many major international crimes, especially with the long delays that happen throughout the investigation and prosecution, and authorities are forced to over rely on witness testimony.26 Geographical distance also makes gathering this evidence or finding witnesses financially cumbersome.27 It’s particularly difficult when there are restrictions on exporting certain items or limited access to crime scenes such as grave sites.28 Because of these evidentiary issues, there is the potential for a power imbalance between the prosecution and defense in these cases.

Witness testimony presents its own challenges, as it’s difficult to locate victims and witnesses, particularly for stigmatized crimes or those witnesses who have a fear of reprisal. Gaining the trust of witnesses and ensuring their safety and security in a trial in another country is particularly challenging.29 Once witnesses can be included, there is still a potential issue of memory loss given the long delays in universal jurisdiction proceedings and the chance of retraumatization.30 Witnesses may also be more intimidated in unfamiliar countries with court settings they are not typically accustomed to.31

Additionally, national authorities exercising universal jurisdiction are hindered by intercultural differences. Prosecutors and judges have a limited understanding of the cultural, social, and political contexts of the states where the crimes were committed, which makes it difficult to evaluate evidence and witnesses appropriately.32 States have differing understandings of justice, from appropriate forms of punishment to varying court procedures, and this disparity becomes apparent in exercising universal jurisdiction. These distinct contexts can hinder the achievement of justice in a form that is meaningful to the victims who actually suffered the crimes.

Finally, domestic justice systems face a major obstacle in that national authorities may have inadequate knowledge of the international criminal justice system. Many national authorities are unfamiliar with their own universal jurisdiction provisions, relevant international law, and the specialized knowledge and skills that are required for these particular types of crimes.33 In some countries, it may be difficult to obtain access to information on extradition or mutual legal assistance treaties, and this may lead prosecutors to not pursue universal jurisdiction.34 National authorities also often lack the specialized investigation and prosecution units that could lend expertise to crimes under universal jurisdiction.35 International law requires unique practical skills, such as evidence gathering abroad, interviewing victims of sexual violence, preserving confidentiality and witness protection, and dealing with intercultural differences.36 These types of skills are critical to successful prosecutions under universal jurisdiction and many countries lack the specialized knowledge or dedicated units to properly facilitate them.

IV. Potential Role for the ICC

The ICC is the first permanent international court with jurisdiction to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. Because it is the first and only court of its kind, the ICC possesses valuable institutional knowledge that can aid in international justice. The infrastructure of the ICC could be a valuable asset in filling the gap in specialized knowledge that many domestic justice systems face in terms of universal jurisdiction. The Court specializes in the very crimes that universal jurisdiction typically prosecutes, and the ICC could help close this knowledge gap in a variety of ways.

First, the ICC could potentially conduct training for national authorities seeking more expertise in grave international crimes. This could include training for investigators, prosecutors, and law enforcement. The ICC conducts virtual events on topics such as “witness protection and support” and could likely expand this method to a more robust program which is focused on the unique complications of universal jurisdiction.37 Training and sharing knowledge is increasingly easier to facilitate as institutions embrace remote options following the pandemic.38 Different organizations in the international justice system have embraced this approach, as seen in joint training across the European Judicial Training Network and training sessions from experts at the International Criminal Tribunal for the former Yugoslavia.39 The ICC itself has conducted training initiatives similar to this.40

The ICC could also help national authorities to establish specialized units within police and prosecution offices for investigating international crimes such as war crimes and crimes against humanity.41 The ICC could contribute training, expertise, and resources for best practices to these units. These kinds of units have been largely successful in Australia, Canada, Ethiopia, and the United Kingdom.42 This could help address many of the practical barriers regarding a lack of specialized knowledge in international crimes.

The ICC could also contribute knowledge by providing prosecutorial policies, strategies and guidelines. For example, the ICC has extensive experience in the protection of witnesses and faces the same issues of retraumatization, confidentiality, and intercultural differences that are seen in universal jurisdiction.43 The Court’s familiarity with these issues could help states trying to build these new skills. Although the ICC may not be the ultimate success in many of these challenging areas, simply sharing resources and network connections can be a valuable resource for national authorities. Sharing knowledge and connecting experts within the international justice field could help advance both the ICC and national authorities exercising universal jurisdiction. The Court could even help create a global resource of information regarding universal jurisdictions and the crimes it involves, with guidelines for best practices and policies.44

The ICC network is also useful for promoting collaboration. The Court could use its relationships with the Assembly of States Parties to encourage or propose guidelines on practical steps to make the practice of universal jurisdiction more feasible for national authorities. This could come in the form of treaties regarding mutual legal assistance in the case of universal jurisdiction, treaties on extradition and arrest procedures for these crimes, or even a form of international monitoring for this process.45 As some of the inadequate universal jurisdiction legislation conflicts with the Rome Statute, collaboration with the ICC could lead to improved legislation which is more reflective of the standards within the Rome Statute. For example, national authorities could be encouraged to remove immunities for heads of state or government officials.46

Advocacy from the ICC can also help spur action from national authorities in exercising universal jurisdiction. This occurred in 2003, when the ICC Prosecutor encouraged states to investigate criminal business and inspired the Netherlands’ investigation of Guus Kouwenhoven.47 In this way, ICC encouragement and support could help divide labor across jurisdictions to prosecute human rights violations abroad. The ICC and national jurisdictions could also collaborate with NGOs to increase advocacy efforts, particularly because NGOs have extensive knowledge of different cultural contexts where crimes may be committed.48

Finally, the ICC could assist with the provision of evidence to national authorities asserting universal jurisdiction. The ICC may conduct preliminary investigations into situations which overlap with universal jurisdiction prosecutions in other states and could provide recommendations or evidence. Provision of evidence may likely be the most helpful assistance the ICC can provide, as national authorities exercising universal jurisdiction face substantial barriers in being unable to access crime scenes and lacking forensic evidence.

Article 93 of the Rome Statute allows the Court to cooperate with and provide assistance to a State Party conducting an investigation or trial for:

[C]onduct which constitutes a crime within the jurisdiction of the ICC or a serious crime under the national law of the requesting State.49

This form of assistance includes, inter alia, the transmission of statements, documents, other types of evidence, and the questioning of witnesses.50 This leaves open the possibility of widespread assistance in providing evidence or other resources for a State Party asserting universal jurisdiction. Additionally, the Statute allows for assistance to be granted to a State which is not a State Party.51 This provides the possibility for ample evidentiary assistance to states asserting universal jurisdiction and opens the possibilities for more widespread pursuit of international justice.

Naturally there are also barriers for the ICC in providing this type of assistance. The Rome Statute places great importance on the confidentiality of witnesses.52 Sharing evidence with other jurisdictions could present difficult issues of confidentiality and witness security. Additionally, under Article 93, if the evidence was obtained with the assistance of a State, the transmission of evidence requires the consent of that state.53 This may present issues where there is political interference or conflicts of interest. However, given the Court’s experience in preserving the confidentiality of witnesses, this challenge is not unduly burdensome. The ICC is familiar with preserving the security and confidentiality of evidence and is likely capable of ensuring national authorities receive evidence have independent, trustworthy judiciaries.54

V. Conclusion

The ICC has valuable expertise, knowledge, and resources to offer national authorities exercising universal jurisdiction. The most beneficial forms of assistance would likely be the provision of evidence and the sharing of expertise through training. While helping to negotiate or develop new treaties establishing mutual legal assistance would be advantageous, this is less likely given the ever-present concerns about state sovereignty.

The question remains whether any type of assistance would be feasible for the ICC, which is already struggling with its own prosecutions. In fact, given the accusations of bias and inefficiency against the Court, some may argue that the ICC should not be teaching other jurisdictions how to prosecute. However, the benefits of potentially delegating some prosecutions to national authorities would alleviate part of the burden on the ICC and redistribute potential for justice to more diverse forums. Different national authorities prosecuting international crimes could help even out the landscape of international justice and prevent Western bias. This is arguably the best bet for a more successful ICC and a more powerful international justice system more broadly, as it divides labor in a more effective way.55

Despite the challenges, cooperation between the ICC and national authorities exercising universal jurisdiction has the potential to greatly benefit the growing landscape of international justice and provide new avenues to fight against impunity.

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

  1. 1.

    About the Court, ICC, available online (last visited Aug. 28, 2023).

  2. 2.

    To What Extent has the ICC Under-Represented Non-Western Laws, Principles, Rules, Procedures, Practices, or Traditions in its Legal Structure and System?, ICC Forum (Jul. 25, 2022), available online; Is the International Criminal Court Targeting Africa Inappropriately?, ICC Forum (Mar. 17, 2013), available online.

  3. 3.

    About the Court, supra note 1; What More Can be Done to Secure Arrests?, ICC Forum (Feb. 13, 2014), available online.

  4. 4.

    Kiran Mohandas Mehon, Asia and the ICC: 20 Years Later, The Diplomat (Oct. 13, 2018), available online.

  5. 5.

    Trial International, Universal Jurisdiction Annual Review 2022 (Apr. 4, 2022), available online.

  6. 6.

    Human Rights Watch, Facts on Universal Jurisdiction (Oct. 19, 2009), available online.

  7. 7.

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

  8. 8.

    Trial International, Universal Jurisdiction Annual Review 2019 (Mar. 1, 2019), available online.

  9. 9.

    Facts on Universal Jurisdiction, supra note 6.

  10. 10.

    Id.

  11. 11.

    Id.

  12. 12.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 5, available online.

  13. 13.

    Id. Art. 12; Id. Art. 13.

  14. 14.

    The States Parties to the Rome Statute, ICC, available online (last visited Aug. 28, 2023).

  15. 15.

    Christopher Keith Hall, Amnesty Int’l, Universal Jurisdiction: The Challenges for Police and Prosecuting Authorities 4 (Jun. 13, 2007), available online.

  16. 16.

    Id.

  17. 17.

    Id. at 5.

  18. 18.

    Rome Statute, supra note 12, at Art. 27.

  19. 19.

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

  20. 20.

    Hall, supra note 15, at 11.

  21. 21.

    Id.

  22. 22.

    Id. at 19.

  23. 23.

    Id.

  24. 24.

    Id.

  25. 25.

    Universal Jurisdiction Annual Review 2019, supra note 8, at 9.

  26. 26.

    Id.

  27. 27.

    Id.

  28. 28.

    Hall, supra note 15, at 16.

  29. 29.

    Universal Jurisdiction Annual Review 2019, supra note 8, at 9.

  30. 30.

    Global Accountability, supra note 18.

  31. 31.

    Id.

  32. 32.

    Id. at 25.

  33. 33.

    Hall, supra note 15, at 18.

  34. 34.

    Id.

  35. 35.

    Id.

  36. 36.

    Id.

  37. 37.

    20th Anniversary of Entry into Force of the Rome Statute, ASP, available online (last visited Aug. 28, 2023).

  38. 38.

    Trial International, Universal Jurisdiction Annual Review 2021 (Apr. 12, 2021), available online.

  39. 39.

    European Judicial Training Network, EJTN-GNS Joint Training on the Investigation and Prosecution of Core International Crimes (Sep. 2022), available online; Press Release, ICTY, President Pocar Participates in Expert Meeting on Inter-State Judicial Cooperation in War Crimes Proceedings (Jun. 13, 2007), available online.

  40. 40.

    Press Release, Office of the Prosecutor, ICC, Office of the Prosecutor Participates in Training Initiative in Uganda: Collaboration is Key to Closing the Impunity Gap (Mar. 13, 2018), available online.

  41. 41.

    Hall, supra note 15, at 18.

  42. 42.

    Id.

  43. 43.

    Id.

  44. 44.

    Global Accountability, supra note 18.

  45. 45.

    Hall, supra note 15.

  46. 46.

    Id.

  47. 47.

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

  48. 48.

    Global Accountability, supra note 18.

  49. 49.

    Rome Statute, supra note 12, at Art. 93.

  50. 50.

    Id.

  51. 51.

    Id.

  52. 52.

    Id. Art. 68.

  53. 53.

    Id. Art. 93.

  54. 54.

    Burke-White, supra note 47.

  55. 55.

    Id.

Doing Away with the ICC’s Unitary Structure

The principle of complementarity is a “cornerstone” of the Rome Statute.1 It is more than a jurisdictional rule on concurrent claims by domestic courts and the International Criminal Court (ICC) as articulated in Article 17: it “has begun to shape the normative structure of peace-making.”2 In its 2006 Report on Strategy, the Office of the Prosecutor (OTP) explained its expansive view of complementarity to include the “creat[ion of] an interdependent, mutually reinforcing international system of justice” that incorporates “national and international networks” and that “participates in a system of international cooperation.”3 Yet, the nearly exclusive focus of the OTP on situations in Africa—and the resultant backlash in the form of the African Union’s (AU) “ICC Withdrawal Strategy” in 2017—suggests a failure in the ICC’s mission of complementarity. Though tensions with the AU have somewhat eased, the ICC remains far from “participat[ing] in a system of international cooperation,” and the Africa Question remains as relevant today as it was in 2017: Every situation that has resulted in an indictment has been in Africa; the first investigation outside of Africa took place as late as 2016.

The AU’s threatened withdrawal was a breakdown in the dialectic that the principle of complementarity demands between member states and the Court, and is perhaps also emblematic of a systemic disconnect between the ICC and the people the Court is supposed to serve: victims of mass atrocities. Anecdotal evidence suggests many victims are not even aware of the existence of the ICC in the Netherlands, so far removed from the African bush.4

In this comment, I explore a radical solution to the disconnect between the ICC and its member states and victims. Proposed by a few scholars,5 this solution reimagines the ICC, not as the highly centralized and unitary organization that it is in The Hague, but as a decentralized and federated network of truly regional courts that unite the Rome Statute’s twin goals of global justice and complementarity. Specifically, the proposal suggests the creation of several ICC regional circuit chambers, each responsible for crimes committed within their circuit, subject to the jurisdiction of the court as detailed in the Rome Statute. First, I outline the circuit-structure of this new ICC; second, I examine how the circuit-structure would benefit the ICC’s mission of complementarity, with special reference to the Uganda situation and in response to the Africa Question; third, I detail the not-insubstantial hurdles towards the realization of the circuit-structure; and finally, I address potential criticisms of this novel proposal.

I. Structuring the ICC Regional Circuit Chambers

The proposed circuit structure is inspired by the U.S. federal court system’s own circuit/district structure.6 Per Article 39(2) of the Rome Statute, which provides that the Court’s judicial functions must be carried out by Chambers, nothing precludes:

[T]he simultaneous constitution of more than on Trial Chamber or Pre-Trial Chamber when the efficient management of the Court’s workload so requires.7

At least in theory, the Rome Statute envisages the possibility of breaking down the Court’s work.

Each regional circuit chamber would have jurisdiction over crimes committed in the territory of the States Parties within to the geographic boundaries of the circuit. The circuits could correspond to continents, but given that some continents have few signatories (e.g., Asia), and others have many (e.g., South America, Africa, etc.), smaller circuits may be preferred. The cost associated with the functioning of a greater number of circuits would have to be balanced against the benefits associated with smaller but more representative circuits. Each regional circuit chamber would follow the current institutional structure, i.e., it would comprise a Pre-Trial Chamber, a Trial Chamber, an Appeal Chamber, and an OTP.8 The seat of each circuit chamber would be in the territory of a contracting party and within the territorial jurisdiction of that circuit chamber. An effort should be made to staff the most important positions within each circuit, such as the Prosecutor and judges, with nationals of the States Parties within the circuit, though this may not always be possible.9 Article 36 of the Rome Statute, which mandates a bench of eighteen judges, presents an issue, since this number would prove inadequate for the circuit structure. However, Article 36(2) lays out the process for expanding the number of judges via simplified amendment to the Rome Statute, requiring a two-thirds majority in the Assembly of States Party (ASP).10

Each regional circuit’s Prosecutor would have the rank of a Deputy Prosecutor. Since the Rome Statute does not specify the number of Deputy Prosecutors, there would be no need for an amendment to accommodate an increase in their number (currently, there are two).11 And since, Deputy Prosecutors are “entitled to carry out any of the acts required of the Prosecutor under this Statute12 and “on a full-time basis,”13 no amendment is required to appropriately empower the Deputy Prosecutors in each circuit. The powers and functions of each Pre-Trial regional circuit chamber, each Trial regional circuit chamber and each Appeal regional circuit chamber will remain the same. The ICC’s current structure, i.e., the bench of all the judges, might serve as a final court of appeals. It could resolve certain circuit splits on issues fundamental to the Rome Statute, rule on issues of concurrent jurisdiction among the regional circuit chambers or other procedural matters, etc.

Many major amendments, not mentioned above, would naturally have to made to set up these regional circuit chambers. These amendments would be based on Article 122, which deals with changes to the Rome Statute that are “of an exclusively institutional nature.”14 Any state party may propose the amendments, which would then have to be accepted by consensus, failing which the ASP or a Review Conference must adopt them by a two-thirds majority.15 Under Article 122(2), amendments shall automatically come into force six months after their adoption and will become binding on all States Parties, meaning that parties which disagreed must follow the wishes of the majority.16 Naturally, these dissenting parties might choose to withdraw from the Rome Statute, so consensus would be much preferable.

Of course, achieving this consensus or two-thirds majority will not be a straightforward task. African parties might be the most amenable to compromise, since the circuit structure seeks to address concerns raised during the threatened African Withdrawal. Moreover, the circuit structure goes directly to Kenya’s statement to the ASP Working Group of Amendments in 2015, that it wishes to propose an amendment “to ensure that the principle of complementarity sufficiently recognizes regional criminal judicial mechanisms,” in part by “allow[ing] judicial proceedings to take place closer to the location where the alleged crimes had been committed.”17 Kenya does not appear to have put forward an amendment to that effect, and it might be the ideal candidate to propose the circuit chambers.18

It must be noted that though this proposal would significantly alter the structure of the ICC in service of complementarity, it does not in fact, seek to amend the principle of complementarity as laid out in Article 17. The circuit structure certainly takes stock of the Prosecutor’s broader understanding of the meaning and goals of the principle, but it would still be bound to Article 17 -complementarity. Therefore, all states would be obliged to prosecute and try crimes themselves before resorting to the ICC, and the Deputy Prosecutors and Prosecutor should continue to be mindful of this obligation.

II. The Circuit Structure Benefits the Principle of Complementarity

The principle of complementarity plays an important role in protecting the diversity of domestic and regional systems of justice. It does this by giving primacy to domestic courts to prosecute crimes and allowing great leeway in how they conduct their proceedings. But when domestic courts cannot or do not prosecute, and the OTP steps in, the deference to traditional forms of justice vanishes. For instance, the intervention of the Prosecutor in the situation in Uganda was roundly criticized for providing only partial justice to victims of the Lord’s Resistance Army.19 Local community leaders and victims placed a greater emphasis on ideals of restorative, rather than punitive, justice in their communities, which the Rome Statute and most Western systems of justice, do not contemplate. As one traditional leader observed: “There is a balance in the community that cannot be found in the briefcase of the white man.”20 Another elder stated:

If [the LRA leaders] are taken to The Hague, they will be locked up with air conditioning and will live the lifestyle of Ugandan ministers. But they will have to come here and make up with the community. Let them live with the people whose ears they have chopped off. Let them see for the rest of their lives what suffering they have caused. That is punishment. In our view, ICC punishment is light. Let them morally come and confess.21

Sarah Nouwen, who conducted many interviews in Uganda in relation to the LRA insurgency, explains that:

International criminal justice, unlike traditional justice, fails to reconcile the offender with the spirits of the offended persons.22

Traditional justice did achieve some recognition in the Juba negotiations. Referring to traditional Acholi, Langi and Madi procedures, the Accountability Agreement provides that:

Traditional justice mechanisms, such as Culo Kwor, Mato Oput, Kayo Cuk, Ailuc and Tonu ci Koka and others as practiced in the communities affected by the conflict, shall be promoted, with necessary modifications, as a central part of the framework for accountability and reconciliation.23

However, it was the Special Division of the High Court, provided for by the Accountability Agreement to deal with the most serious crimes, and not traditional justice that was designated to meet ICC’s complementarity standards.24 Nevertheless, attention to traditional forms of justice in an otherwise Westernized legal context is noteworthy, and an excellent example of the complementarity that the ICC itself should, and nearly did, aspire to.

The regional circuit structure’s primary benefit is that it would efficiently facilitate this ambitious kind of complementarity. It is simply not possible for an institution to properly take account of the traditional practices, and their viability and acceptance within the community as systems of justice, while sitting in The Hague. A smaller circuit, staffed by people familiar with traditional practices and headquartered in the region, would have a much better shot at syncretizing the demands of the Rome Statute with the victims’ expectations of justice. Incorporating this degree of cultural relativism demanded by the principle of complementarity, as envisioned by the OTP, would make the ICC in Africa a truly African institution, run by and for Africans.

But, the indicia of complementarity include more than the formalistic recognition of traditional justice. The true incorporation of regional networks and modes of justice (in conformity with the Rome Statute) requires effective outreach into affected communities on the ICC’s part. Indeed, the ICC’s operation, legitimacy and public impact in general depend on how much communities affected by violence understand the Court.25 Communities that are shut out of the dialogue around the ICC may be unsupportive or unable to come forward and participate in proceedings,26 or advocate for recognition of traditional forms of justice. The ICC’s outreach programs have in the past had some effect: Successive research in the eastern part of the Democratic Republic of Congo (the site of an ICC situation) conducted in 2008 and 2013 show, for example, that awareness about the existence of the ICC rose from 28% to 54% of the adult population.27 This achievement is largely attributable to the ICC’s outreach efforts, local NGOs and expanded coverage by the media.28 Yet, in 2013, just 9% of respondents in that region of the DRC described their knowledge of the ICC as a “good” or “very good.”29 The authors who conducted this research emphasized the need for “localized outreach” predicated on “defin[ing] and understand[ing] their target audience,” a thorough knowledge of “the characteristics and information and communication needs of the target groups,” and an understanding of the “cultural[] appropriate[ness]” of the outreach.30 The researchers also explained that the “results of the outreach must be measured against realistic expectations.”31 In sum, effective outreach and integration of traditional forms of justice requires a thorough understanding of the facts on the ground; it requires effective collaboration with local media, local NGOs and other local organizations, and it requires an intimate knowledge of the local cultures, expectations and practices. A regional circuit court would be better placed in this regard than the unitary ICC currently is. The principle of complementarity can only be served by the regionalization of the Court.

There are some other efficiencies that the circuit structure would afford the general functionality of the Court. A well function Court would, in turn, make the incorporation of “national and international networks”32 into the working of the Rome Statute much more palatable to other regional organizations. For instance, a decentralized circuit structure would allow for easier evidence gathering for OTP investigations and for use in judicial proceedings. Practical issues associated with getting witnesses to testify in the Netherlands, thousands of miles away from their home, would be largely resolved if they had only to travel the relatively shorter distance to the headquarters of the regional circuit. It might even be possible for the Court to travel to the witnesses or the specific territory where the crime occurred, in true circuit fashion. But, as researcher Susana SáCouto explains, the efficient gathering of evidence also requires an “ongoing communication and dialogue”33 between the Court and first responders, which are typically NGOs like the Seruka Health Center, set up by Médicins Sans Frontières in response to conflict-related sexual violence in Bujumbura, Burundi.34 This dialectic is imperative in educating first responders about the types of information most helpful to investigations and prosecutors trying ICC crimes. According to SáCouto, encouraging first responders to collaborate with the ICC “requires that the OTP identify and pursue opportunities to foster mutual respect and understanding, and build trust, with first responders,” who might otherwise be wary of working too closely with the ICC.35 Broadly, the task of establishing a strong and stable dialectic with regional organizations on the ground would greatly benefit from the regionalization of the Court itself, and would advance the broad principle of complementarity.

III. Potential Criticisms of the Proposed Circuit Structure

Doing away with the ICC’s unitary structure is undoubtedly an ambitious proposal that will not be easy to implement. In Part I, I discussed one major legislative hurdle that proponents of the circuit structure will have to overcome: securing a consensus, or at least a two-thirds supermajority, in the ASP. Amending the Rome Statute to this extent will be a costly endeavor. The negotiations themselves will likely take several years of work, even before the implementation of the circuit system around the world. But, any such proposal is not doomed to be an exercise in futility. The Rome Statute has been amended before, most notably by the addition of crimes of aggression to the substantive jurisdiction of the Court in December 2017.36 Unlike that amendment, amendments relating to the circuit structure would not modify the jurisdiction of the Court, the very heart of the Rome Statute. They would not alter the Court’s powers or the obligations of the States Parties. They would not even distort the principle of complementarity as described in Article 17, central as it was to securing the support of the original parties to the Rome Statute. Communicating the proposal as an internal reorganization, rather than as a fundamental recharacterization, of the ICC would go a long way in making the proposal more acceptable to the States Parties, especially if it is emphasized that the reorganization is in the interest of the principle of complementarity already enshrined in the Rome Statute.

Beyond its feasibility, it might also be argued that the circuit structure represents an intolerable, neo-colonialist encroachment of the ICC, an ostensibly Western institution, into the internal affairs of formerly colonized States Parties. Whereas the ICC in its current form operates in, say, Africa from a distance and is constrained by its unitary structure from interfering too intimately in the affairs of African states, bringing the Court into the territories of States Parties and the very heart of Africa, would be an imposition. I would argue, however, that far from reconstructing a colonial past, the circuit-structure actively works against it by empowering African states and their people to administer international criminal justice as they see fit. Ingrained within the current form of the Rome Statute is an element of hubris: the assumption that international justice, as it has always been envisioned and developed in the West, is applicable everywhere and to all cultures. The attitude of the victims and their communities in Uganda, as discussed above, lays waste to such a suggestion.

A circuit, because it would be a regional organization, would be better at recognizing and complementing forms of justice that the victims themselves would recognize; it is a waste of resources and a true imposition to execute justice that has no bearing on the culture framework that the victims operate in. The circuit structure can efficiently accommodate diverse modes of justice that are not compatible with each other, but are nonetheless recognizable to the people within each circuit. At the same time, the proposed circuit structure, like the current unitary structure, would continue to secure principles of international justice that the States Parties, especially those in Africa, signed up for.37 Abandoning the ICC’s unitary structure does not mean abandoning its core mission of prosecuting mass atrocities; rather, it means giving victims and communities the space and ability to see justice done in a forum and form that they recognize.

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

  1. 1.

    The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, ICC-02/04-01/05, Decision on the admissibility of the case under article 19(1) of the Statute, ¶ 34 (Mar. 10, 2009), available online.

  2. 2.

    Sarah Nouwen, Complementarity in Uganda: Domestic Diversity or International Imposition?, in The International Criminal Court and Complementarity: From Theory to Practice 1120, 1121 (Carsten Stahn & Mohamed M. El Zeidy eds., 2011), paywall, doi.

  3. 3.

    Office of the Prosecutor, ICC, Report on Prosecutorial Strategy 5, 16 (Sep. 14, 2006) [hereinafter Prosecutorial Strategy], available online.

  4. 4.

    Patrick Vinck & Phuong N. Pham, The Content, Strategies and Methods of Outreach and Public Information Must be Based on Evidence, Localizing Outreach and Responding to the Needs and Expectations of Heterogeneous Communities Affected by Mass Violence, ICC Forum (Feb. 17, 2015), available online.

  5. 5.

    Bing Bing Jia, The International Criminal Court’s Relations with the United Nations, ICC Forum (Jun. 28, 2018), available online; Konstantinos D. Magliveras, The Withdrawal of African States from the ICC: Good, Bad or Irrelevant?, 66 NILR 419 (Nov. 2019), available online, doi.

  6. 6.

    Magliveras, supra note 5, at 433.

  7. 7.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 39(2)(c), available online.

  8. 8.

    Cf. id. Art. 34; see Magliveras, supra note 5, at n.91

    (explaining that a separate Registry for each circuit would not be necessary).

  9. 9.

    It may not be possible to have a circuit entirely staffed by representative nationals local to the circuit, at least initially and especially if the circuit is small, since there may not be enough candidates for each position.

  10. 10.

    Rome Statute, supra note 7, at Art. 36(2).

  11. 11.

    See Press Release, ICC, ICC Deputy Prosecutors to be sworn in on 7 March 2022: Practical information (Mar. 1, 2022), available online.

  12. 12.

    Rome Statute, Art. 42(2).

  13. 13.

    Id.

  14. 14.

    Id. Art. 122(1).

  15. 15.

    Id. Art. 122(2).

  16. 16.

    Id.

  17. 17.

    Assembly of States Parties, ICC-ASP/14/34, Report of the Working Group on Amendments, ¶ 18 (Nov. 16, 2015), available online.

  18. 18.

    Assembly of States Parties, ICC-ASP/15/24, Report of the Working Group on Amendments, ¶ 20 (Nov. 8, 2016), available online; Assembly of States Parties, ICC-ASP/16/22, Report of the Working Group on Amendments, ¶ 26 (Nov. 15, 2017), available online; Assembly of States Parties, ICC-ASP/17/35, Report of the Working Group on Amendments, ¶ 16 (Nov. 29, 2018), available online.

  19. 19.

    Nouwen, supra note 2, at 1131.

  20. 20.

    Id.

  21. 21.

    Id. at n.38.

  22. 22.

    Id. at 1131.

  23. 23.

    Id. at n.45.

  24. 24.

    Id. at 1137.

  25. 25.

    Vinck & Pham, supra note 4.

  26. 26.

    Id.

  27. 27.

    Id. at n.4.

  28. 28.

    Id. at 67.

  29. 29.

    Id.

  30. 30.

    Id. at 68.

  31. 31.

    Id. at 69.

  32. 32.

    See Prosecutorial Strategy, supra note 3.

  33. 33.

    Susana SáCouto, Encouraging First Responders to Collaborate with the International Criminal Court and Improving their Capacity to Obtain Information so that it may be Used for Investigations or in Judicial Proceedings Involving Sexual and Gender Based Crimes, ICC Forum (Apr. 12, 2016), available online.

  34. 34.

    Id. at 26.

  35. 35.

    Id. at 35.

  36. 36.

    Crime of Aggression—Amendments Ratification, ASP (Feb. 28, 2019), available online.

  37. 37.

    See Kamari Maxine Clarke, Is the ICC Targeting Africa Inappropriately or Are There Sound Reasons and Justifications for Why All of the Situations Currently Under Investigation or Prosecution Happen to Be in Africa?, ICC Forum (Mar. 17, 2013), available online

    (explaining that African states had strong incentives to sign on to the Rome Statute, despite the Statute’s inherent systemic bias against African states).

Helping States Pursue Investigations Under Universal Jurisdiction: Proposed Role for the International Criminal Court and Interpol

Introduction

At a fundamental level, a state needs three things to pursue a criminal investigation through universal jurisdiction:

  1. existing national laws or legislation authorizing the exercise of universal jurisdiction over the specific crime,

  2. political will to apply those laws and pursue alleged criminals under the scrutiny of the international community, and

  3. national capacity to conduct an effective investigation of the alleged crime.

While states face a host of challenges during each of these steps, this comment focuses on the challenges states face from an investigatory perspective. To this end, I suggest two things. First, the International Criminal Court (ICC or the Court) and the Office of the Prosecutor (OTP) should set up a formal review process to evaluate state requests for assistance under Article 93(10) of the Rome Statute.1 This process would create an official rule board within the Court. Second, the ICC should leverage its cooperation agreement with the International Criminal Police Organization (Interpol) to grant a requesting state access to Interpol resources. At a high level, the goal of this suggestion is two-fold: first, to provide a way for states to access valuable assistance to supplement their investigative capacity, and two, to institutionalize a way for the ICC to receive and validate external requests for assistance.

Part I of this comment outlines several of the challenges that states face as they seek convictions under the exercise of universal jurisdiction. Part II provides an outline of the proposed procedure by which the ICC could provide additional assistance. This Part identifies a legal basis for this proposal and identifies how the proposal could be implemented in practice. Part III discusses why Interpol, given its connections to the international police community, would be an effective partner for this approach. Part IV addresses anticipated critiques of this proposal and offers counterarguments to these critiques. I find

  1. that the Rome Statute and the Cooperation Agreement between the ICC and Interpol form an existing legal basis for this proposed procedure;

  2. there are strong policy considerations underlying the proposed procedure, such as bringing legitimacy to the exercise of universal jurisdiction and conserving scarce OTP and Interpol resources;

  3. Interpol is the ideal partner for this proposal due to their global network and reach; and

  4. likely critiques can be meaningfully addressed.

I. General Challenges States Face When Applying Universal Jurisdiction

Despite speculation about the declining relevance of universal jurisdiction,2 data indicate that the exercise of universal jurisdiction is on the rise.3 Yet few states have the capacity to conduct effective investigations concerning the crimes set forth by Article 5 of the Rome Statute (Article 5 Crimes).4 Challenges arise in several forms.

First, states may simply lack the requisite national legislation authorizing the exercise of universal jurisdiction over a specific crime.5 And even when states have implemented legislation, many states, including States Parties to the Rome Statute, struggle to square international crimes with their domestic criminal codes.6 Moreover, to the extent that they have implemented legislation authorizing the exercise of universal jurisdiction over international crimes, the legislative definitions of the crimes may not comport with the definitions set forth by the Rome Statute or understood by international conventions.7

Second, states exercising universal jurisdiction must conduct investigations abroad, as key witnesses or evidence are likely to be within the jurisdiction of another state. They may find a lack of cooperation or outright obstruction from those states as they conduct the investigation, making it impossible to gather evidence and build an effective case.8 This may be especially true where the individual being accused of the crime is an active member of another state’s government.9 Further, conducting effective investigations abroad generally requires specialized personnel that can operate at an international level and effective diplomatic channels to engage with foreign police. Many states lack these resources.

Third, states often have little to no experience prosecuting Article 5 Crimes and may be unable to conduct an effective proceeding or one that would comport with international principles. This lack of institutional experience may serve to delegitimize the proceeding and lead the international community to speculate about whether justice was achieved. Assuming for the purposes of this comment that the exercise of universal jurisdiction is desirable, instances of mishandled prosecutions would sour international opinion in this area.

While the effective exercise of universal jurisdiction will require progress on all these fronts, this comment focuses on the second challenge identified above: state capacity to conduct effective investigations. Fundamentally, this requires international police cooperation between the prosecuting state and states that house evidence, witnesses, or defendants. I suggest that the ICC, in conjunction with Interpol, is well-positioned to facilitate this cooperation.

II. Proposal

I suggest that the ICC and the OTP establish a procedure to receive and evaluate requests from states to assist with the exercise of universal jurisdiction. This procedure would involve setting up a formal review board (Review Board) to hear state requests for assistance.10 Once a request is approved, then the OTP would refer the case to Interpol, which would work with the requesting country and engage police in the state or states where witnesses, evidence, or defendants are housed. I propose that the Rome Statute and the Cooperation Agreement between the ICC and Interpol serve as legal authorities for this proposal. Subsection A outlines the legal basis for the formation of a formal Review Board and identifies the policies that support it. Subsection B outlines the legal basis that allows the ICC to engage with Interpol. Subsection C proposes how this arrangement would operate in practice.

A. Legal Basis for the Establishment of a Formal Review Board to Process State Requests

Article 93(10)(a) of the Rome Statute enables the Court to cooperate with a States Party’s request for assistance with the investigation of a crime “which constitutes a serious crime under the national law of the requesting State.”11 The Court may also aid non-States Parties under Article 93(10)(c).12 Thus, there is a legal basis for any state, regardless of Rome Statute party status, to petition the Court for assistance. Likewise, there is a legal basis for the Court to hear and comply with these requests. A necessary implication of the power to receive a request is the power to evaluate the request. Since Article 93 does not prescribe a procedure for the evaluation of requests, the drafters imply that the Court may select its own method of review. Thus, a straightforward reading of Article 93 provides a legal basis for the creation of a formal review process, including the formation of a Review Board.

One wrinkle in this argument concerns where the Review Board would be housed. Of the ICC’s organs, the OTP seems best positioned to evaluate the merits of an external claim for assistance with an investigation. After all, the OTP’s sole focus is to evaluate and pursue Article 5 Crimes. But Article 42 of the Rome Statute explicitly states that “A member of the [OTP] shall not seek or act on instructions from any external source.”13 Thus, it seems that the OTP would not be able to directly receive requests under Article 93(10).

Article 15 and the rest of Article 93 are of little help. Article 15 outlines the Prosecutor’s power over crimes “within the jurisdiction of the Court.” While the crimes which states would seek assistance with are likely to be the kind of crimes that the Prosecutor generally has power over, they may have been committed in states where the Court lacks jurisdiction. Further, Article 93(10) states that the Court may provide assistance.14 It makes no mention of the Prosecutor—a fact made more troubling by other portions of Article 93 which explicitly state the Court or the Prosecutor.15 Thus, it seems that the drafters deliberately excluded the Prosecutor from Article 93(10).16 In any case, even if the Review Board needed to be housed elsewhere in the ICC, it is hard to imagine that Article 15 or any other provision of the Rome Statute would bar the OTP from consulting with the Review Board.

While it is unclear where the proposed Review Board would be housed, Article 93(10) provides an uncontroversial basis for the creation of a formal review process. Thus, there is a sound legal basis for the first step of this proposal.

B. Legal Basis for Referring Cases to Interpol

To authorize engagement between the Court-OTP and Interpol, the Court should leverage its cooperative agreement with Interpol as an implementing mechanism. Article 5(2) of the Cooperation Agreement states that the OTP may request the assistance of national teams, including war crime units.17 This provision is broad and could be interpreted to include assistance from Interpol to coordinate between the requesting state and the state where witnesses and evidence are housed.

If Article 5(2) is deemed insufficient to authorize this arrangement, we may also turn to Article 5(1), “Other Assistance from Interpol.” This provision states that “[t]he ICC-OTP may seek the expertise of the Interpol General Secretariat’s specialized staff” for “criminal analysis.”18 The language here is vague and leaves room for interpretation of what expertise from specialized staff would entail—I argue that this expertise could take the form of Interpol coordination efforts to assist with the investigation of Article 5 Crimes.

Interpol certainly has expertise in this area. Interpol has acknowledged that it:

[I]s in a unique position to lead and reinforce ongoing efforts to assist law enforcement authorities, international criminal tribunals and national prosecution services to fight genocide, war crimes and crimes against humanity.19

As a testament to that belief, Interpol created a specialized unit in 2014 to assist with the investigation and prosecution of war crimes.20 Interpol also hosts trainings for law enforcement on how to address these crimes—as of 2015, Interpol had trained some one hundred investigators from thirty countries and six international organizations.21 Thus, the expertise contemplated by the Cooperation Agreement plausibly includes Interpol’s expertise in investigating Article 5 Crimes.

One issue with this interpretation is that Article 5(1) of the Cooperation Agreement mentions expertise staff from Interpol’s General Secretariate, which acts as Interpol’s administrative and executive organ.22 While it is unclear how much overlap there is between General Secretariate Staff and Interpol’s specialized unit on addressing war crimes, scholars observe that the General Secretariate coordinates all policing actions within Interpol.23 Thus, it seems likely that the Secretariate has the authority to coordinate between members of Interpol’s war crimes team and other states.

If Article 5 of the Cooperation Agreement is insufficient to authorize this arrangement despite the arguments above, then the ICC could turn to Article 7(2), which states that the agreement may be modified by mutual consent.24 The ICC could negotiate to add an implementing mechanism to the agreement—one that would allow the OTP to refer the requesting state to Interpol and engage Interpol’s investigatory staff. While the suggestion that the OTP and Interpol negotiate a new provision carries its own political challenges, as any negotiation between international organizations would, it would be one way to ensure that Interpol buys into this arrangement.

The final legal obstacle is that the Cooperation Agreement authorizes engagement between the ICC and Interpol, but it says nothing about engagement between Interpol and a third-party state petitioning the ICC for assistance. This obstacle may be surmounted in one of two ways. First, the ICC could act as the facilitating party for engagement between the state and Interpol. In this way, the Court would remain directly involved—the cooperative agreement does not explicitly bar an arrangement between Interpol, the ICC, and a third-party state, so this solution may fit within the four corners of the agreement. However, this solution may be undesirable for the Court, as it would need to assign a staff member for this role and cover any expenses such as travel, security, etc., for the duration of the cooperation. Another solution would be to argue that the cooperation only requires that the ICC initiate cooperation and that the Court is not required to have any role after that point. This would likely be more desirable to the Court and only marginally more questionable from a legal perspective. Again, the Cooperation Agreement lacks specificity, so there seems to be wide latitude for creative interpretations.

Beyond the Cooperation Agreement, Article 87 of the Rome Statute may also have a role. Article 87(1)(b) states that “requests [for cooperation] may also be transmitted through the International Criminal Police Organization.”25 That said, this approach also runs into an issue of jurisdiction. Article 86 implies that states need only comply with requests to cooperate on matters related to the investigation and prosecution of a crime within the Court’s jurisdiction.26 Because many of the requests for assistance with the prosecution of crimes under universal jurisdiction would likely involve matters that are not within the Court’s jurisdiction, Article 87 may be of limited use.

C. Implementation

While the question of where to house the Review Board may be unresolved, it is useful to propose its form. A three-panel board, consisting of pre-trial judges and acting in consultation with a Deputy Prosecutor, would be an ideal arrangement. Pre-trail judges are accustomed to working in three-person panels and making expert decisions on whether a case has merit.27 Deputy prosecutors are likewise trained to identify whether a case has merit, but they have the advantage of pursuing their own cases. Thus, they are well-positioned to evaluate the likelihood of an investigation leading to an effective prosecution. The requesting state would present its case and the Review Board would decide by simple majority with no appellate review.28

Regarding what criteria would be used to evaluate a case, Article 53 provides a useful starting point. Article 53 outlines the process by which the ICC Prosecutor will initiate an investigation.29 The most notable feature of Article 53 is its reference to the “interests of justice.” Article 53(1) and Article 52(2) taken together provide that the Prosecutor should consider whether taking action would serve:

[The] interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime.30

While the correct interpretation of the phrase interests of justice is the subject of much debate,31 it may nonetheless serve as a useful starting point for how the proposed Review Board would approve or deny an application.

Once a request is approved, the Review Board would refer the case and the requesting state to a dedicated point of contact at Interpol.32 The referral should contain all the relevant details from the application and act as a guiding document for Interpol. For its part, Interpol would engage its National Central Bureau(s)33 in the member state or states where the relevant witnesses or evidence is located and coordinate between the multiple parties. Further, Interpol could leverage its criminal databases on behalf of the requesting States Party. These databases contain roughly 124 million police records and include personal information on individuals, forensics data, travel documents, etc.34 Access to these records may prove to be a boon for requesting states as they exercise universal jurisdiction.

III. Why the ICC Should Leverage Its Relationship with Interpol

I advocate that to aid its member states, the ICC should utilize its relationship with Interpol to provide investigatory and prosecutorial assistance. An observer may note that this approach seems circuitous—the ICC has its own investigatory staff, prosecutors, and cooperation provisions, so why not engage those resources instead? I advocate for channeling these requests through Interpol for three reasons. First, and as a matter of political will, the ICC would be more likely to pursue this option if it can utilize external resources—here, an Interpol war crimes unit—rather than shift resources away from ongoing OTP investigations.

Second, this option would be less controversial. Were the ICC to engage its own investigative teams, critics may characterize this as an undue broadening of the Court’s powers. The drafters of the Rome Statute declined to grant the ICC universal jurisdiction. Thus, if OTP personnel were conducting investigations on behalf of States Parties—parties that are exercising universal jurisdiction based on their national laws—critics may argue that this would represent a de facto expansion of the Court into the realm of universal jurisdiction. While there is no room here to address the merits of these claims, the Court would be better served by avoiding controversy where possible.

Third, Interpol is likely better positioned to aid requesting states in their investigations than the ICC or OTP. As one scholar notes:

[Interpol] is the most important international entity involved in matters of transnational policing and international police cooperation with a global reach.35

As an institution, Interpol has had nearly an 80-year head start over the ICC to develop institutional strength and state partnerships. Each of Interpol’s 195 member states hosts an Interpol National Central Bureau (NCB). These NCBs give Interpol a direct connection to the national police force in each of its member states. Given Interpol’s activities in its member states regarding a variety of policing needs, it has built stronger on-the-ground relationships than the ICC. Interpol, by leveraging these relationships, would thus be a highly effective partner to requesting states as they conduct investigations abroad. Moreover, as mentioned above, Interpol has several databases that house sophisticated information on potential perpetrators of Article 5 Crimes. Being able to leverage those databases—on a limited basis and in accordance with any governing data protection law or policies—may prove to be a critical resource for the requesting state. For these reasons, Interpol would be a powerful partner to aid requesting states and facilitate police cooperation between states.

IV. Addressing Anticipated Critiques

The approach suggested here is by no means perfect. First, observers may argue that this approach adds an unnecessary layer given that most states have a direct channel to Interpol through NCBs—why channel requests through the ICC? Further, by adding an obstacle to engaging with Interpol, do we risk impeding justice by delaying assistance through bureaucratic channels? Finally, would this process act as a crutch for states and prevent them from developing their own mechanisms to investigate and prosecute crimes under universal jurisdiction?

Channeling requests through Interpol serves two functions. First, it may be the preferred approach by Interpol. Most international organizations desire to remain politically neutral, even if only superficially. The approach suggested here allows Interpol to defer requests from states that may be politically motivated and lack merit—requests that would be denied by the Review Board. Further, this would allow Interpol to preserve its resources for only those matters that have merit and are legitimate. Second, this process would strengthen the ICC as an institution. By making it the conduit for this assistance, the Court would have a new role on the global stage, and one that furthers its institutional goal of ending impunity for perpetrators of Article 5 Crimes. Further, this would help legitimize the exercise of universal jurisdiction—an exercise that has long been the subject of controversy—by ensuring that these cases have merit and serve the interests of justice.

To the question of impeding justice, I have three responses. First, the Court would need to ensure that the review process it establishes is timely, efficient, and transparent. It would also need to establish institutional goals and performance indicators for the Review Board that it reviews along with its other internal evaluations. Second, even if the suggested approval process is inefficient in practice, this would leave states no worse than they are without the process. They would still be able to exercise universal jurisdiction, they would simply not have the added external assistance to do so. Further, this process has the potential to facilitate justice, not impede it. When considering whether to exercise universal jurisdiction, states may elect to proceed or not based on their evaluation of their own capacity to conduct an effective investigation. If states feel that they can obtain external assistance from the ICC and Interpol, this may incentivize them to bring a claim that they otherwise would not due to a lack of institutional capacity. In this way, this process may increase the number of legitimate exercises of universal jurisdiction.

Another anticipated critique is the idea that relying on external aid rather than internal capacity building would leave nations in a weakened state and reliant on this process for future cases. This argument is unpersuasive for several reasons. First, data indicate that a handful of states are responsible for the overwhelming majority of instances where universal jurisdiction has been implemented.36 These states, including Germany, Finland, and Sweden, have developed the requisite institutional knowledge and policing units to carry out effective investigations and prosecutions of Article 5 Crimes. Thus, they have little to no need for external assistance or training from the ICC or Interpol. The process for external assistance recommended by this comment would primarily help those states that rarely exercise universal jurisdiction—states like South Korea37 and Poland.38 Where a state pursues cases under universal jurisdiction only one or two times over the course of decades, or where a state does not have an established policy for pursuing these cases, there is no reason to think that training or capacity building would be effective. If a state requests training without an ongoing case, it may be that those individuals who are trained leave their positions without having ever pursued a case and thereby deprive the institution of that training experience. This would mean that the training had no practical relevance. Further, providing training rather than assistance on an ad hoc basis for ongoing cases would only be useful in the context of that specific case given the likelihood that the state may not exercise universal jurisdiction for another decade or more. Third, pursuing a training or capacity-building program would likely be no more effective than the type of institutional learning that would occur while national authorities work closely with outside experts, police, or consultants—activities that would occur when a state requests and receives external assistance through the process proposed by this comment.

Conclusion

Cooperation among states and a lack of state capacity to pursue cases related to Article 5 Crimes present substantial obstacles to the exercise of universal jurisdiction. The Court and the OTP can act as better partners to these states by creating a formal assistance program under Article 93(10). Interpol would be the ideal international organization to partner with for this program given its broad ties to its member states. While there is a sound legal basis for portions of this program, several legal questions remain. A suggested area of future research would be to understand the legal limitations of the ICC Cooperation Agreement with Interpol. In addition, future research aimed at better understanding how Interpol engages with the global community would illuminate this proposal. As one scholar notes, Interpol, despite being one of the largest international organizations in the world, is “extremely under-researched.”39

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

  1. 1.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 93(10), available online.

  2. 2.

    See, e.g., Rephael Ben-Ari, Universal Jurisdiction: Chronicle of a Death Foretold?, 43 Denv. J. Int’l L. & Pol’y 165 (2015), available online; Ignacio de la Rasilla del Moral, The Swan Song of Universal Jurisdiction in Spain, 9 Int’l Crim. L. Rev. 777 (2009), available online, doi.

  3. 3.

    Máximo Langer & Mackenzie Eason, The Quiet Expansion of Universal Jurisdiction, 30 EJIL 779, 784 (Dec. 11, 2019), available online, doi.

  4. 4.

    See Bruce Broomhall, Towards the Development of an Effective System of Universal Jurisdiction for Crimes Under International Law, 35 New Eng. L. Rev. 399, 410 (2001), available online.

  5. 5.

    Dalila V. Hoover, Universal Jurisdiction Not So Universal: Time to Delegate to the International Criminal Court, 8 Eyes on the ICC 73, 89 (Jun. 4, 2011), available paywall.

  6. 6.

    Id.

    (providing as an example that “prosecutors in states such as Denmark and Norway […] can only interpret international crimes in terms of national crimes that generally amount to murder or assault”).

  7. 7.

    Id. at 91.

  8. 8.

    Broomhall, supra note 4, at 412–15.

  9. 9.

    Id.

  10. 10.

    See Hoover, supra note 5, at 102–05

    (suggesting the creation of an ICC Review Board primarily as a means of safeguarding against politically motivated exercises of universal jurisdiction).

  11. 11.

    Rome Statute, supra note 1, at Art. 93(10)(a).

  12. 12.

    Id. Art. 93(10)(c).

  13. 13.

    Id. Art. 42.

  14. 14.

    Id. Art. 93(10).

  15. 15.

    See, e.g., Id. Art. 93(10)(5).

  16. 16.

    See generally M. Cherif Bassiouni & William A. Schabas eds., The Legislative History of the International Criminal Court (Oct. 5, 2016), paywall

    (providing a comprehensive record of the legislative history of the Rome Statute, a discussion of which is beyond the scope of this comment).

  17. 17.

    Cooperation Agreement Between the Office of the Prosecutor of the International Criminal Court and the International Criminal Police Organization, Art. 5(2) (Dec. 22, 2004, in force Mar. 22, 2005) [hereinafter Cooperation Agreement], available online, archived.

  18. 18.

    Id. Art. 5(1).

  19. 19.

    Interpol, War Crimes and Genocide Sub-Directorate, Interpol’s Support to the Investigation and Prosecution of Genocide, War Crimes and Crimes Against Humanity (2015), available as download (last visited Aug. 28, 2023).

  20. 20.

    Id.

  21. 21.

    War Crimes, Interpol, available online (last visited Aug. 28, 2023).

  22. 22.

    Cooperation Agreement, supra note 17, at Art. 5(1).

  23. 23.

    Giulio Calcara, Balancing International Police Cooperation: Interpol and the Undesirable Trade-off Between Rights of Individuals and Global Security, 42 Liverpool L. Rev. 111, 118 (2021), available online, doi.

  24. 24.

    Cooperation Agreement, supra note 17, at Art. 7(2).

  25. 25.

    Rome Statute, supra note 1, at Art. 87(1)(b).

  26. 26.

    See id. Art. 86.

  27. 27.

    Judicial Divisions, ICC, available online (last visited Aug. 28, 2023).

  28. 28.

    Given that the ICC will likely want to limit its personnel investment and that this Review Board would not be making a final binding legal decision, there is no need for appellate review.

  29. 29.

    Rome Statute, supra note 1, at Art. 53.

  30. 30.

    Id. Art. 53(1), Art. 53(2).

  31. 31.

    See generally Philippa Webb, The ICC Prosecutor’s Discretion Not to Proceed in the “Interests of Justice,” 50 Crim. L. Q. 305 (2005), available online.

  32. 32.

    See Cooperation Agreement, supra note 17, at Art. 3(1)

    (“The Parties shall each designate a point of contact with a view to ensuring implementation of the provisions of the present Cooperation Agreement”).

  33. 33.

    See generally National Central Bureaus, Interpol, available online (last visited Aug. 28, 2023)

    (explaining that NCBs are offices that act as Interpol’s point of contact in each of its member states).

  34. 34.

    Databases, Interpol, available online (last visited Aug. 28, 2023).

  35. 35.

    Calcara supra note 23, at 113.

  36. 36.

    Langer & Eason, supra note 3, figs.1 & 2.

  37. 37.

    Korean Falun Gong Practitioners File Lawsuit Charging Jiang Zemin and “610 Office” Head Luo Gan with Genocide, Minghui.org (Dec. 29, 2003), available online.

  38. 38.

    Summary of European Lawsuits Against Jiang Zemin and his Accomplices from the Chinese Communist Party, Clearharmony.net (Mar. 16, 2005), available online.

  39. 39.

    Calcara, supra note 23, at 113.

Regional Organizations Role in Implementing Complementarity: How Actions of Development Banks & the African Union Often Go Against the Interests of Justice

I. Introduction: How Do Regional Organizations Fit into Complementarity?

The complementarity principle of the International Criminal Court (ICC) places ICC prosecutions in a position of complementing, but not superseding, national jurisdiction.1 The complementarity principle asserts that national courts should have first priority to investigate and prosecute crimes committed within their jurisdictions, with the ICC acting only when national courts are unable or unwilling to perform their tasks.2 This is enshrined in the Rome Statute3 both in its object and purpose,4 and with regard to determining admissibility.5 However, often there is both a deficit in national courts’ ability or willingness to prosecute crimes listed in Article 5 of the Rome Statute6 (Article 5 Crimes) judiciously, while at the same time there is often a deficit in the ability of the ICC to prosecute.7 In this space between ICC and national court prosecutions, perpetrators avoid justice. Of thirty-eight indictments issued by the ICC, only twenty-one have been detained by the Court.8

Regional organizations are defined broadly in this comment. They include regional bodies, such as the African Union (AU) and Organization of American States, as well as economic bodies such as the Organization for Economic Co-Operation and Development (OECD), and its subsidiaries and sister organizations, including the World Bank and the International Monetary Fund (IMF). These latter entities operate at the regional level through regional development banks and other multilateral financing institutions, thus they are included in this comment’s analysis and are referred to throughout as Development Banks. Interventions by these regional organizations have the potential to either bridge, or widen, the gap between ICC prosecution and national courts holding perpetrators accountable for Article 5 Crimes. As such, their actions may promote outcomes that are in the interest of justice, while at other times their conduct provides cover and/or enable wrongdoers. Thus, harming the implementation of positive complementarity.

The question presented by the Office of the Prosecutor (OTP) is what role regional organizations may play to help implement the principle of complementarity. More pointedly, the goal of this inquiry should be to determine if regional organizations can provide a viable means to increase the administration of justice locally, thereby alleviating the burden on the resource-constrained OTP and promoting a wider, more expedient application of justice.9 A key question in this analysis is whether regional organizations are actually effective at preventing future atrocities or helping bring perpetrators to justice. If they are, then the international community should dedicate more resources and deference to regional organizations. If they are not, then the international community should rethink how much funding and political support it dedicates to such entities. Also worth considering are the practical limitations in the administration of justice and the extent to which the international community has the power to compel regional organizations, and national governments where atrocities take place, to act. Consideration of such limitations should be a factor in the decision-making process of the international community, i.e., if the international community has limited ability to compel national governments directly, then even if regional organizations are only moderately effective at preventing atrocities through complementarity, it would still be in the interest of justice to expand their role. Conversely, if particular regional organizations—such as the AU—have shown an inclination to help perpetrators evade justice altogether, then they are in fact operating to the detriment of justice and complementarity.

This comment argues that, theoretically, regional organizations can have an impact on the prevention of atrocities and promote complementarity, however, this impact depends significantly on how much power they wield and their integrity, both of which are factors that vary greatly by entity. Where regional organizations can compel national governments to act—such as by withholding funding in the case of Development Banks, or shaming them into action in the case of regional bodies—they have the potential to effectively promote of justice. However, this potential will only come to fruition when the members of a regional organization are motivated to act consistently and with integrity. Otherwise, such entities may inhibit the administration of justice by obfuscating the authority of the ICC and otherwise obstructing the international community’s attempts to prevent atrocities. This occurs when regional organizations’ conduct serves to legitimize and fund the activities of human rights violators, as well as when regional organizations seek to prevent the extradition of people indicted by the ICC on illegitimate grounds. Development Banks and the AU appear to be following this harmful path, to the detriment of justice.

II. Development Banks and Other Regional Organizations Fail to Adequately Consider Crimes When Making Funding Determinations

Development Banks, funded primarily by multilateral funding agencies such as the World Bank and the IMF,10 minimally consider violations of Article 5 Crimes when authorizing loans or granting loan forgiveness.11 Whereas some of these entities have safeguards to prevent and punish corruption by State actors, which threatens repayment, they often fail to adequately consider war crimes, crimes against humanity, and genocide; as in practice, promoting human rights are not their central objective. In a similar fashion, the ICC fails to significantly consider corruption when investigating and prosecuting crimes that fall under its jurisdiction, or admitting new States Parties.12 Similarly, the United Nations often fails to consider for human rights records when appointing States to human rights oriented committees. This failure to coordinate on issues of economic and humanitarian justice creates a gap in the fragmented international legal system that leads to the proliferation of injustice in both forms. Yet, the two are closely interlinked as repressive regimes often depend on the access to capital provided by Development Banks and other international organizations. While such financial institutions do not promulgate law as traditional hard law, they occupy an increasingly significant realm of soft law that influences how States behave with each other and with their constituents.

Additionally, many financing institutions have administrative processes that resemble tribunals, which should give them the ability to control the actions of States and officials within State governments.13 Failing to comply with the rules promulgated by ones of these Development Banks’ financing facilities can lead to a State being deemed not credit worthy and losing the good creditor status necessary to obtain continuous flows of Foreign Direct Investment (FDI), or capital invested from abroad that is used domestically to build infrastructure, start new businesses, or expand existing businesses. The consequences of a State losing its credit worthiness can be detrimental to a national economy and limit the practical ability of a regime to wage war and/or commit atrocities. With the spread of technology and wider access to information, it is be expected that the public in these countries are increasingly aware of these correlations. As such, an adjudication by a Development Bank or other organization that determines whether FDI flows continue, should carry significant punishments not just for the State, but for the officials within the regimes of these States who rely on international financing to maintain their grip on power.

Some academics have argued that this exertion of soft power by regional and international organizations detracts from the salience of hard law adjudications, with these financing institutions having a more significant influence on the day-to-day operations of State behavior than the official tribunals conducted by the International Court of Justice or the ICC.14 Another significant criticism of the soft power created by these such organizations is that they operate in an opaque and inconsistent manner, harming the ability of the public or the international community to review the reasoning behind their determinations.15

This is supported by the fact that leaders of authoritarian governments in developing nations—that conduct elections—depend on the support of the public directly and that support depends, at least in part, on the regime’s ability to promote the economy.16 In States that do not conduct free and fair election, leaders depend even more heavily on the support of the military to remain in power. This support is also dependent on FDI and foreign cash reserves, indirectly, by ensuring the economy has a large enough tax base to continue funding the military’s operations, and directly, when the military leadership shares in the embezzlement and gatekeeping that comes with nearly all FDI in the developing world. Abusive leaders operating in this environment would be justified being more afraid of losing their source of funding, which may lead to their being overthrown, than the low risk of being extradited to the Hague. Thus, indiscriminate access to capital through Development Banks can legitimize atrocity-committing governments and reduce their relative threat assessment of an ICC prosecution. This is magnified when other regional organizations, such as the AU, use their collective power to provide mutual protection to leaders whose interests are aligned—for instance by casting ICC extradition as a colonialist, interventionist phenomenon that should be resisted.17

This conduct by regional organizations discourages the rule of law by incentivizing the political and military leadership to appoint friendly judges that are unlikely to bring them to justice for crimes against their population or neighboring States. It also provides corrupt regimes more capital to bribe these national courts. Thus, Development Banks’ indiscriminate funding provides more opportunities for high-stakes embezzlement, ratcheting up the financial incentive to retain power through undemocratic means, which then can lead to political violence and other human rights violations, which the corrupted judiciary is unlikely to punish. In doing so, Regional organizations here seem to drastically harm the implementation of complementarity.

However, there is hope. International organizations and Development Banks’ ability to withhold funding and stop a nation’s economic activities is a powerful tool that can be used to punish bad behavior, such as when a State fails to prosecute atrocities domestically or extradite heads of state indicted by the ICC. Where a regime is unwilling or unable to prosecute a government official for a serious crime, whether it is corruption or an Article 5 Crime, organizations could handle the matter through their internal adjudicative processes and conclude to withhold funding. As a result, criminally culpable officials would face increased scrutiny domestically, and States may be persuaded to prosecute these officials. Unfortunately, it seems likely that other bilateral and multilateral considerations, such as cooperation on national security matters and the promotion of global economic activity, led funding States in OECD countries to shy away from divesting in Development Banks and other organizations that fail to enforce strict consequences on recipients whose officials commit atrocities. These OECD countries’ failure to consistently demand compliance with basic human rights as a condition to accessing the global financial system has divested their power, and subsequently the regional organizations’ power, to compel violators into action. As a result, these regional organizations—namely, Development Banks that are effectively subsidiaries of the World Bank, IMF, and their sister organizations—which should have the ability to help implement complementarity, have instead contributed to the perpetuation of injustice. This failure to the align the interests of international organizations, who are all generally funded from the same source, is perhaps the starkest expression of inefficiency in the fragmented international legal system.

In fairness to such organizations, it is hard to predict what the world would look like in their absence. It is foreseeable that in the absence of institutionalized financial support, greater chaos and political upheaval would occur that involves more acts of violence against civilian populations and other atrocities, and lower overall social welfare in the aggregate. The institutionalization of corruption through these entities may even be a stabilizing force in some regions, such as Africa, where there are easily accessible natural resources which evildoers can exploit to fund conflict. Similarly, these financial institutions likely have been a factor in preventing conventional, prolonged State-on-State aggression among developing countries in the twenty-first century, as this activity is harder to conceal and arguably poses a larger threat to the international system, that would demand a response. Thanks in part to the stability provided by these Development Banks, the international community, especially funding nations, have a stronger economic interest in ensuring peace. Open warfare threatens markets and risks the total loss of capital that has been invested in a territory—whereas human rights violations injure people and societies dramatically, capital is at far more risk of total loss when there are attacks by conventional militaries against conventional militaries. Machiavellianly, the risk of nationalization also decreases when there is a stable, corrupt government.

Given the post-WWII impetus of the international community to stabilize currencies and markets18 as a means to promote peace and prevent future wars,19 the simplest answer is likely the correct one. Human rights violations caused indirectly by Development Banks and other organizations’ indiscriminate allocation of FDI has been an unfortunate, but unintended, consequence of obtaining external stability. However, mindful of this history, regional organizations and the OECD that funds them, should do more to promote internal security by committing to adjudicating the human rights and rule of law bona fides of recipients when making funding determinations. This should be done with a focus on consistency, integrity, and transparency in their processes to ensure that actions are in the interest of justice. Doing so would ensure regional organizations play a positive role in implementing complementarity.

If such organizations were to adopt stronger sanctioning tools, for instance, similar to those imposed by the United States’ Office of Foreign Assets Control (OFAC) that target specific individuals, they could meaningfully punish wrongdoers and discourage individual criminal conduct. The OFAC program strips designated persons from being able to engage in legitimate commerce by threatening criminal charges against anyone who does business with them, freezing assets, and locking them out of the global banking system.20 Practically, these designations are serious punishments that carry meaningful impacts on targeted individuals as these sanctions prevent them from engaging in a broad range of day-to-day activities necessary to survive in the modern era. Cut off from conventional banking, designated individuals struggle to access their savings and as a result struggle to run their businesses and pay for the daily upkeep of their families.

For government and military officials operating in corrupt developing countries— i.e., the folks ordering human rights violations in the places where they are most likely to occur—this also means scarcer resources to pay the bribes and other facilitation payments necessary to retain political support, influence national courts when they are in local disputes, and fund personal security forces. If regional organizations had the ability to similarly disarm officials and military leaders, or entire State governments, by freezing assets or barring them from engaging in transactions, these individuals may lose their power to carry out atrocities—or escape culpability, by adversely influencing national courts. As a result, the domestic prosecution of Article 5 Crimes might become more likely. Thus, achieving positive complementarity.

For this to be effective, it would need to be done consistently and with integrity, rather than on an ad hoc basis when it is politically convenient. In theory, regional bodies are in a good position to carry this out as they allow the international community to pool resources and centralize their intentions. Additionally, most developing countries’ largest trading partners are their border States, who typically are also members of the same regional body. Thus, a coordinated regional effort to isolate an individual could reasonably be expected to go beyond financial activity and include freezing their cross-border commerce activities. However, if a State or individual could get around an organization’s sanctions, for instance if the relevant members of the international and regional community are not able and willing to comply with the mandate to isolate the bad actor, then that actor’s bad conduct may not be sufficiently discouraged. Their conduct may in fact get worse out of desperation.

Similarly troubling, if the result of such sanctions is limited to provoking the national governments to prosecute a violator for corruption, when they are also accused of Article 5 Crimes, the result would fall short of proportional justice. This seems to be what is occurring in Sudan. Following years of crippling OFAC sanctions, President Omar al-Bashir eventually lost the ability to control the military and was deposed. He is accused of genocide and crimes against humanity by the international community and by constituents of Sudan’s transitional government—which includes representatives from the Darfur region he is accused of oppressing. Yet, he has only stood trial domestically for corruption and money laundering, for which he was convicted and sentenced to two years imprisonment.21 To date, he has not been extradited on the open ICC warrant.22

Escaping adjudication of criminal liability for the full scope of evil conduct, i.e., if the punishment ends at sanctions and prosecution for only corruption and similar financial crimes, such an outcome does not seem to be in the interest of justice. Nonetheless, in some instances, this may be the greatest extent of possible justice given practical limitations. For instance, the ICC’s inability to compel extradition absent the willingness of the State government in control of the territory where the accused is living, means justice through a trial at the ICC cannot occur. Similarly, a regional organization forcing a national government to prosecute23 a former head of state or other officials domestically, by threatening crippling sanctions on the entire State or military intervention if the government does not comply, seems overly interventionalist and harmful to innocent civilians, some of whom would then be twice victimized—first by the human rights violator(s) and then by worsening economic conditions caused by the intervention. This also likely would not be in the interest of justice.

Where a national government is unwilling to comply with extradition, it seems unlikely that mild financial consequences or diminution of status through shaming by a regional body would compel complementarity. Regional organizations could target officials in the new national government with harsh sanctions if they failed to comply, but this may lead to political instability during an already transitional period. Thus, unless the new government posed a significant threat to regional peace and security, or was itself on the verge of committing grave human rights violations,24 this would also likely not be in the interest of justice. Therefore, it seems regional organizations’ ability to implement complementarity by force, even by economic force, would be unjust and impractical in many contexts. It would also likely be at odds with international law, which generally prohibits interventions into domestic sovereign affairs25 and certainly prohibits the use of armed force outside of self-defense or authorization by the United Nations Security Council.26

III. Other Comments on the AU

Regional bodies in the developing world, including the AU, have generally failed to help implement complementarity in recent years. As previously discussed, these regional organizations’ power comes primarily from the funding provided by OECD States, which are unwilling to condition funding on the adjunction of human rights abuses. Pragmatically, it would not be self-serving for the leaders of the AU to go against this status quo, as doing so would bind them to additional obligations and prevent them from using the organization to protect their personal interests. Thus, it is unlikely the AU or similar regional bodies would meaningfully act to implement complementarity unless Member States’ national leaders were compelled to do so by their voters or the international community.

These regional organizations primarily act when doing so suits the collective interests of the leaders of their member States. And in many regions of the world, and in Africa particularly, there exists an agency problem—the interests of leaders are not aligned with the interests of civilian populations when it comes to accountability for human rights violations. Absent free and fair domestic elections, a civilian population’s interests will not be reflected in a regional bodies’ decision to assist in holding a leaders criminally culpable for Article 5 Crimes. Many members of the AU do not hold free and fair elections. Thus, the AU will continue to protect the interests of leaders rather than the interests of Member States’ populations. Only when the AU’s legitimacy is existentially threatened, for instance by failing to denounce a genocide, would the organization be expected to act in a way that goes against leaders’ interest in preserving their ability to violate human rights without interference.

With respect to implementing complimentary, the AU’s biggest contribution has been its use of collective power to shield past and future wrongdoers from criminal culpability by framing ICC extradition as a neocolonial enterprise, when in fact its members freely consented to joining. By resisting efforts to extradite heads of state, and failing to denounce grievous human rights violations, the AU legitimizes conduct that could be interpreted as Article 5 Crimes. This goes against the complementarity principle as the AU’s goal is to shield heads of states from justice altogether, not promote national court prosecutions for Article 5 Crimes.

The creation of the African Court for People and Human Rights by the AU appears to be a doubling down of this strategy.27 It is unclear how an international criminal prosecution28 under this tribunal would be perceived by the ICC, in terms of double jeopardy, or ne bis in idem.29 Would an African head of state indicted by the ICC have his case dropped if charges were bought under this tribunal? According to the Rome Statute:

[A person can be tried if the trial in another court was conducted] for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the [ICC] Court; or […] were not conducted independently or impartially […] in circumstances […] inconsistent with an intent to bring the person concerned to justice.30

Given the AU’s lack of integrity in its resistance to extraditing Omar al-Bashir, and through its persistent threats to withdraw from the Rome Statute,31 it seems unlikely that this AU tribunal would impartially bring an African head of state to justice for a violation of an Article 5 Crime. If such a proceeding was analyzed by the ICC, it likely would be deemed as a trial conducted for the purpose of shielding the person concerned from criminal responsibility, inconsistent with an intent to bring them to justice. Thus, it seems the AU is using this tribunal as a collective effort to implement negative complementarity.32 It is a smart tactic as this sets up the OTP for a political fight, where the ICC will have to defend its position by attacking the ability of this regional organization to conduct an impartial trial, which will likely come across as colonial and condescending, to the benefit of the AU’s primary argument for withdrawal. Nonetheless, on its face, the establishment of this court looks like an attempt to deny victims justice and help current and former heads of state escape culpability through sham complimentarily, while laying the groundwork for a ne bis in idem defense should the ICC challenge it. This is not in the interest of justice.

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

  1. 1.

    Linda E. Carter, The Principle of Complementarity and the International Criminal Court: The Role of Ne Bis in Idem, 8 Santa Clara J. Int’l L. 167 (2010), available online.

  2. 2.

    Id.

  3. 3.

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

  4. 4.

    Id. at Preamble.

  5. 5.

    Id. Art. 17(1)(a).

  6. 6.

    See id. Art. 5

    (defining ICC jurisdiction over the crime of genocide, crimes against humanity, war crimes, and the crime of aggression).

  7. 7.

    Id. Art. 5

    (requiring the accused to be present at trial, due to this formality, and the failure of the ICC to either find an accused or compel their extradition, only slightly more than half of the people indicted by the ICC have been tried at the Hague).

  8. 8.

    About the Court, ICC, available online (last visited Aug. 28, 2023).

    (Charges were dropped against five, who died prior to trial; presumably, these and other twelve who remain at large, escaped justice).

  9. 9.

    Justice can take on many meanings that go beyond criminal culpability of a perpetrator for past crimes, such as taking measures that seek to prevent future atrocities. Examples of this include truth and reconciliation, the promotion of human rights as a top national priority, and building capacity in national legal systems to ensure future perpetrators are held accountable. These are all instances where regional organizations might play a role.

  10. 10.

    Ana Carolina Garriga, Human Rights Regimes, Reputation, and Foreign Direct Investment, 60 Int’l Stud. Q. 160 (Mar. 2016), available online, doi.

  11. 11.

    Beth A. Simmons & Allison Danner, Credible Commitments and the International Criminal Court, Int’l Org. 225 (Apr. 2010), available online, doi

    (finding that States most likely to commit atrocities are incentivized to join human rights treaties in order to obtain reputational benefits, but in practice these commitments have little practical importance).

  12. 12.

    James R. Hollyer & Bryan Peter Rosendorff, Why Do Authoritarian Regimes Sign the Convention Against Torture? Signaling, Domestic Politics and Non-Compliance, SSRN (Jun. 1, 2011), available online, doi.

  13. 13.

    Antonio Franceschet, The Rule of Law, Inequality, and the International Criminal Court, 29 Alternatives 23 (Feb. 2004), paywall, doi.

  14. 14.

    See generally, Cathrin Zengerling, Regional International Judicial and Quasi-Judicial Bodies, in Greening International Jurisprudence: Environmental NGOs before International Courts, Tribunals, and Compliance Committees 93 (Aug. 22, 2013), available online.

  15. 15.

    Dinah Shelton ed., Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (Oct. 9, 2003), paywall, doi.

  16. 16.

    Economies of developing countries often rely significantly on FDI-intensive infrastructure and resource extraction projects, as well as foreign cash reserves and the international banking system to conduct trade.

  17. 17.

    This allows leaders of States to obtain the benefits of membership in the Rome Statute, e.g., legitimization internationally, an air of respect for human rights, and the ability to weaponize ICC prosecutions against their foes, while avoiding the consequences themselves. Thus, they are better off remaining in the treaty than withdrawing.

  18. 18.

    Cooperation and Restoration (1944–71), IMF, available online (last visited Aug. 28, 2023).

  19. 19.

    United Nations Charter, Preamble, available online.

  20. 20.

    See The Office of Foreign Assets Control—Sanctions Information, U.S. Dept. of Treas., available online (last visited Aug. 28, 2023).

    (“The Office of Foreign Assets Control (‘OFAC’) of the U.S. Department of the Treasury administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States.”).

  21. 21.

    Abdi Latif Dahir, Sudan’s Ousted Leader is Sentenced to Two Years for Corruption, N.Y. Times, Dec. 13, 2019, available online.

    (Omar al-Bashir was convicted in a domestic Sudanese court for corruption charges in late 2019 and is currently serving this two-year sentence while an ICC warrant has been outstanding for his arrest for twelve years).

  22. 22.

    See Al Bashir Case, ICC, available online (last visited Aug. 28, 2023)

    (“[The outstanding ICC warrant consists of] five counts of crimes against humanity: murder, extermination, forcible transfer, torture, and rape; two counts of war crimes: intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities, and pillaging; three counts of genocide: by killing, by causing serious bodily or mental harm, and by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction, allegedly committed at least between 2003 and 2008 in Darfur, Sudan.”).

  23. 23.

    The same analysis applies to regional organizations attempting to force a national government to extradite indicted individuals to the ICC.

  24. 24.

    See, e.g., Ben Kioko, The Right of Intervention Under the African Union’s Constitutive Act, Int’l Rev. Red Cross 85, 807 (Dec. 2003), available online

    (concluding that Article 4(h) of the Constitutive Act of the African Union gives the AU the right to intervene militarily to prevent Article 5 Crimes in an AU Member State, but that practically, such an intervention would be difficult for the AU to decide on and to carry out).

  25. 25.

    United Nations Charter, supra note 19, at Art. 2(7).

  26. 26.

    Id. Art. 51.

  27. 27.

    Max du Plessis, A Case of Negative Regional Complementarity? Giving the African Court of Justice and Human Rights Jurisdiction over International Crimes, EJIL Talk (Aug. 27, 2012), available online.

  28. 28.

    See generally, Pascifique Manirakiza, Complementarity between the International Criminal Law Section and Human Rights Mechanisms in Africa, in The African Court of Justice and Human and Peoples’ Rights in Context: Developments and Challenges, 989 (Charles Chernor Jalloh, Kamari Maxine Clarke & Vincent Obisienunwo Orlu Nmehielle eds., May 2, 2019), available online, doi

    (discussing how this court does not presently have the authority to prosecute criminal liability, however, this is something AU members are pushing for).

  29. 29.

    Rome Statute, supra note 3, at Art. 20.

  30. 30.

    Id.

  31. 31.

    du Plessis, supra note 27.

  32. 32.

    Vincent Obisienunwo Orlu Nmehielle, “Saddling” the New African Regional Human Rights Court with International Criminal Jurisdiction: Innovative, Obstructive, Expedient?, 7 AJLS 7 (Aug. 27, 2014), available online, doi.

Universal Jurisdiction’s Universal Issues: Solutions for the States by the ICC

I. Introduction

Universal jurisdiction is an element of international law that is frequently exercised by many countries across the world. It is most generally exercised by states that have an interest in seeing perpetrators of international crimes brought to justice. It has recently been exercised by Germany prosecuting Syrian officials and by Argentina in relation to the conflict in Myanmar.1 There has also been a call for countries to exercise jurisdiction against Russia for the war in Ukraine.2

This principle allows a state to exercise jurisdiction over a criminal, even if the crimes were not committed in their territory. The suspect generally does not even have to be in the territory of that state for them to exercise jurisdiction. Although, the crime must be an outrage to the international community as a whole, in order for another state to exercise universal jurisdiction. These types of crimes include: genocide, crimes of aggression, mass rape, and crimes against humanity. Which are agreed upon by the international community to be so egregious that the perpetrators must be investigated and brought to justice at any cost, even if that cost is an investigation by a completely unrelated state.

This comment explores the current landscape of universal jurisdiction, the major issues with the existing landscape, and what the International Criminal Court (ICC) can do, as a partner to the states, to help solve some of these issues. Section II explores and explains the current landscape of the legislation around universal jurisdiction. This section explains this principle from both the perspective of the states and the ICC. Then, Section III explores the current issues with universal jurisdiction. Finally, Section IV explores the solutions necessary for the ICC to assist in mending each of these issues.

II. Current Landscape of Universal Jurisdiction

The principle of universal jurisdiction is essentially about cultivating an international community through the protection of human rights by the prosecution of international criminals.3 Certain crimes like genocide or crimes against humanity are likely to go unpunished if some form of universal jurisdiction is not available, because the national state is unlikely to prosecute the perpetrators.4 This leaves the prosecution up to either the ICC or other states abroad. In order for a state to exercise universal jurisdiction, the offense must be so heinous that it offends or diminishes us all, so the international community is entitled to punish the perpetrator.5

The ICC is a court of last resort and is only meant to complement national courts when they are unable to exercise jurisdiction.6 Currently, the ICC does not have any sort of organ to review a state’s prosecution and evaluate it for fairness.7 Additionally, the ICC does not have truly universal jurisdiction, as it can only prosecute crimes that occur in a state that has ratified the Rome Statute.8 With only 110 states parties, the ICC has not diminished the need for universal jurisdiction.9 Therefore, the ICC can only encourage bystander prosecutions where other states exercise universal jurisdiction.10 Without other states practicing universal jurisdiction, “travelling tyrants” will not be dealt with.11

Under international law, the primary responsibility to prosecute, investigate, and bring perpetrators to justice is given to the national authorities.12 To have an effective prosecution under universal jurisdiction, there must be international cooperation.13 This allows a country to prosecute people for serious international crimes, regardless of where the atrocities occurred.14 The alternatives to universal jurisdiction are prosecution of criminals by international entities or by their national courts.15 Neither is fully sufficient on their own.16

The idea of universal jurisdiction is justified by the fact that all states parties to the relevant treaties have effectively consented to the exercise of jurisdiction by another state.17 It is a mechanism intended to disrupt states when they are acting outside of international norms.18 This mechanism is commonly used in order for a state to not become a safe haven for international criminals.19 Although, no successful prosecutions of high-ranking officials under universal jurisdiction have so far been reported.20

International law does not require that the perpetrator be present for a country to exercise universal jurisdiction, a state can open an investigation without the suspect’s presence.21 Although, this generally requires cooperation from the state where the crime occurred, which may be difficult to obtain.22 State to state cooperation is essential for universal jurisdiction prosecution in order to locate and transport witnesses, authenticate documents, transport evidence, and discourage political interference.23

Approximately 125 countries have legislation on universal jurisdiction that permits their courts to exercise it over any crime that arises to the level of international law.24 Universal jurisdiction can be exercised over both crimes arising under international law and ordinary crimes that arise under national law.25 In 2019, there were 2906 universal jurisdiction cases ongoing in the European Union alone.26

III. Issues with the Current Landscape of Universal Jurisdiction

There are many issues with the way universal jurisdiction is currently being implemented, which greatly affects its success in bringing justice to victims of mass atrocities. The major issue is that almost all of the legislation on universal jurisdiction is flawed in some way.27 Another issue is slow arrest procedures and investigations.28 Other substantial issues are heads of state and government officials’ immunities, states not knowing how to prosecute international criminals, and ineffective international monitoring of investigations and prosecutions.

Most states have not enacted legislation that permits their courts to exercise universal jurisdiction over crimes against humanity, war crimes, or genocide.29 Very few states have legislation that covers all of these crimes.30 Every state’s legislation falls short of fully covering all of these crimes, thus creating the opportunity for the state to be a safe haven for criminals.31 Although, some states have had success applying international criminal laws in the absence of a national law.32

Furthermore, the legislation in some states is not consistent with the Rome Statute, so the punishments do not rise to the same level as the atrocity that was committed.33 In this situation, states fail to capture the full nature of the crime. For example, torture is not the same as assault and should not receive the same sentence.34 A few states even still have a statute of limitations on these international crimes, resulting in those states being safe havens for criminals after that period of time expires.35

Many states have slow arrest procedures and investigations, which gives suspects time to flee.36 Some states even require evidence of the presence of the suspect, before they can open a preliminary investigation.37 Additionally, it is difficult for states to locate witnesses in other states without assistance from that state.38 It is also difficult for states to obtain physical evidence from abroad.39 Even when they do obtain this evidence, it is difficult to authenticate it.40

This slow investigation and arrest procedure, is usually due to a lack of political will to actually investigate the crimes.41 Often, the states’ interests trump the interests of the victims in these cases.42 There is a contest between the rights of the victims and the rights of the states, which requires a balancing test to result in a proper investigation and prosecution.43

Another issue is that many states provide immunities to government officials, even for crimes against humanity.44 This immunity is granted because there is a fear of upsetting other states and the result of allowing these international immunities is that many perpetrators are not investigated.45 Many states originally have immunities for heads of state, government officials, and diplomats to protect them from civil suits and ordinary criminal prosecutions while abroad.46 This could be the case because criminal justice systems are often controlled by remaining elements from former regimes.47 Although, these immunities were not designed to protect heads of state from prosecution for international crimes.48 This allows for immunity for crimes that were not intended by the international community.

Another issue is that the investigation and prosecution of international criminals requires specialized knowledge and experience, that many states lack.49 It also requires skills and experience in evidence gathering abroad, interviewing victims, witness protection, negotiation with law enforcement agencies, and language ability.50 Many states lack these sophisticated task forces and experience in investigating and prosecuting international criminals.51

An additional issue, is that there is no effective international monitoring of a state’s investigation and prosecution.52 The ICC does not generally monitor the performance of states in enforcing international criminal law.53 This allows states to conduct sham investigations and prosecutions; states would likely take this responsibility more seriously if there was some form of international monitoring.54

IV. Solutions for the ICC to be a Better Partner

The ICC has the potential to solve most of the issues that come with exercising universal jurisdiction, thus becoming a more effective partner to the states in implementing this principle. With the ICC’s assistance, states will be more likely to have successful prosecutions of international criminals and get justice for victims. The ICC can offer assistance through many different avenues: preparing states for investigations and prosecution, fixing flawed legislation, and creating an international review board. These resources would be invaluable to the states attempting to exercise universal jurisdiction.

The first step for the ICC to help would be for them to survey states for what the main issues truly are. This survey will take into account the resources, population, legislation, and political landscape of the states. These data points will help the ICC determine which states need more assistance and which areas of the prosecution or investigation that they are struggling with. The purpose of the survey will be to gather data on what international crimes are the most difficult to prosecute and what the other shortcomings of the states are in these areas. Once the ICC has data on what areas the states are struggling with, they can offer better assistance in bringing justice to victims.

A. Flawed Legislation

The ICC could assist in fixing the flawed legislation of the states by drafting a toolkit on universal jurisdiction and international criminal law. This toolkit will include recommendations and best practices for the states to legislate, investigate, and prosecute international crimes. The ICC is the best entity to create this resource, because the Office of the Prosecutor knows what is required to carry out a trial of this type. With the experience of the ICC, a toolkit could be created that shows an exact pathway to a successful trial.

This toolkit would encourage states to review their national jurisdiction and legislation to better implement and define international law. This toolkit would also guide states in creating legislation that properly covers international crimes, because it would be based on the Rome Statute. This would help states to clearly define the crimes in their own statutes, instead of having to relate an atrocity to an ordinary crime in order to prosecute. It is essential for every state that seeks to exercise universal jurisdiction to have the proper framework. This framework would help create fairer trials and investigations. With this assistance from the ICC, the toolkit would help make universal jurisdiction, more universal.

B. Immunities

The ICC could also include guidelines for diplomats, heads of state, and government officials’ immunity in the toolkit. These guidelines would create a universal rule that waives immunity for any perpetrator of a mass atrocity. This is a major issue that states face when exercising universal jurisdiction and the ICC could alleviate this issue by encouraging states to drop the immunity clauses from their statutes for international criminals. With an immunity clause, universal jurisdiction is not successful, so as a partner to the states the ICC should strongly encourage a waiver of immunity in grave situations.

C. Slow Arrest Procedures and Investigations

The ICC could assist in accelerating investigations and arrest procedures by creating a taskforce of investigators that can be sent to assist the states. This taskforce would solve the issues of bureaucracy that currently confront investigators when trying to investigate crimes abroad. These investigators would be specially trained in investigating crimes of mass atrocity, as well as language skills. This training would allow them to investigate more efficiently than the typical investigators for ordinary crimes.

Additionally, this taskforce can be deployed directly onsite to the territory where the crime occurred much faster than any investigators from the state exercising universal jurisdiction. Due to the political landscape, it is likely that an international entity would be allowed to investigate before another state would be. This would assist the states by gathering evidence before it is tampered with and actuating arrests in a timely manner.

D. Unknowledgeable National State Officials

The ICC could amend state ignorance on international criminal prosecution by creating an international criminal law academy. This academy would train judges, prosecutors, and investigators on how to handle trials of this magnitude. The training would likely include investigation techniques, the ways international criminal law differs from ordinary criminal law, and the best practices for prosecuting a foreign national without the consent of their home state. This training academy would greatly assist national courts in hosting effective trials.

The ICC could also create specialized units for each of the crimes that fall under universal jurisdiction. These units would have specific training, resources, and knowledge on investigating and prosecuting that one specific crime. These units could be deployed to the state exercising jurisdiction to assist local prosecutors. This assistance would help states see the ICC as a more effective partner, because their assistance would be evident in both the trial and investigation.

E. Ineffective International Monitoring

Another way the ICC can be a better partner in universal jurisdiction is to create a mechanism for effective international monitoring. The ICC should create a review board to monitor the investigations and prosecutions of states for fairness and adequacy. If the states were to be under the scrutiny of an international review board, then a more successful prosecution would be likely to result.55 The review board would have the responsibility of reviewing evidence during the pre-trial process and then they would decide if that state has the ability to carry out the trial properly. This would allow the ICC to have oversight of the investigations and trials that both a national state and a state exercising universal jurisdiction are conducting.

F. Expanding Article 93(10) of the Rome Statute

In order to be a more effective partner in universal jurisdiction, the ICC should expand Article 93(10) of the Rome Statute.56 This article allows the ICC to aid a state party conducting an investigation by transmitting documents and questioning persons detained by the court.57

The ICC should expand this article to include more forms of assistance. This assistance could be evidence gathering, victim transportation, and suspect arrests. It would also be necessary to amend this article to include the solutions, listed in the subsections of this Section, to hold the court accountable to the states parties as a partner in universal jurisdiction.

V. Conclusion

Universal jurisdiction is an essential, yet complicated aspect of international law. As discussed in this comment, it was designed to protect the international community from mass atrocities. As well as, creating a mechanism for countries to diminish safe havens for international criminals. This is an important mission to both the ICC and states around the world.

Although, there are many issues with how it is currently being implemented. The states have failed to create legislation that properly implements universal jurisdiction, because the crimes are not clearly defined and are inconsistent with the Rome Statute. The legislation also frequently includes archaic immunity clauses or statutes of limitations. The states also have slow arrest and investigation procedures due to bureaucracy and difficulties obtaining evidence and witness statements from abroad. The states also simply do not know how to prosecute crimes of this magnitude and the ICC does not have a proper review system to monitor the investigations and trials for adequacy.

The ICC can provide a solution to all of these issues through amending Article 93(10) of the Rome Statute. The ICC can amend this provision to include a toolkit to fix flawed legislation, a taskforce to accelerate investigations and arrests, an academy to train state officials and prosecutors, and a review board to review states’ investigations and prosecutions. Through these solutions, the ICC has the potential to be a more effective partner to the states when they are exercising universal jurisdiction.

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

  1. 1.

    Steve Szymanski & Peter C. Combe, The Siren Song of Universal Jurisdiction: A Cautionary Note, Articles of War (Apr. 1, 2022), available online.

  2. 2.

    Id.

  3. 3.

    Adeno Addis, Imagining the International Community: The Constitutive Dimension of Universal Jurisdiction, 31 Hum. Rts. Q. 129, 144 (Feb. 2009), available online.

  4. 4.

    Id. at 140–41.

  5. 5.

    Id. at 138.

  6. 6.

    Dalila V. Hoover, Universal Jurisdiction not so Universal: A Time to Delegate to the International Criminal Court, 52 Cornell L. Sch. Grad. Student Papers 7–8 (Jun. 4, 2011), available online.

  7. 7.

    See id. at 103.

  8. 8.

    Cedric Ryngaert, The International Criminal Court and Universal Jurisdiction: A Fraught Relationship?, 12 New Crim. L. Rev. 498, 500 (Oct. 1, 2009), available online, doi.

  9. 9.

    Human Rights Watch, Basic Facts on Universal Jurisdiction (Oct. 19, 2009), available online.

  10. 10.

    Ryngaert, supra note 8, at 505.

  11. 11.

    Olympia Bekou & Robert Cryer, The International Criminal Court and Universal Jurisdiction: A Close Encounter?, 56 ICLQ 49, 52 (Jan. 2007), available online, doi.

  12. 12.

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

  13. 13.

    Christopher Keith Hall, Amnesty Int’l, Universal Jurisdiction: The Challenges for Police and Prosecuting Authorities, 1 (Jun. 13, 2007) [hereinafter Challenges for Police], available online.

  14. 14.

    Douglass Cassel, Universal Criminal Jurisdiction, 31 Hum. Rts. 22, 22 (2004), available online.

  15. 15.

    Id.

  16. 16.

    Id.

  17. 17.

    Devika Hovell, The Authority of Universal Jurisdiction, 29 EJIL 427, 432 (Jul. 23, 2018), available online, doi.

  18. 18.

    Id. at 435.

  19. 19.

    Id. at 439.

  20. 20.

    Ryngaert, supra note 8, at 507.

  21. 21.

    Id.

  22. 22.

    Id. at 12.

  23. 23.

    Id. at 14–20.

  24. 24.

    Challenges for Police, supra note 13, at 3.

  25. 25.

    Id.

  26. 26.

    Howard Varney & Katarzyna Zduńczyk, ICTJ, Advancing Global Accountability: The Role of Universal Jurisdiction in Prosecuting International Crimes, 1, 35 (Dec. 2020), available online.

  27. 27.

    Challenges for Police, supra note 13, at 3.

  28. 28.

    Id. at 4.

  29. 29.

    Id.

  30. 30.

    Id.

  31. 31.

    Id.

  32. 32.

    Hoover, supra note 6, at 88.

  33. 33.

    See Challenges for Police, supra note 13, at 4.

  34. 34.

    Hoover, supra note 6, at 90.

  35. 35.

    See Challenges for Police, supra note 13, at 4; Hoover, supra note 4, at 91.

  36. 36.

    Challenges for Police, supra note 13, at 4.

  37. 37.

    Id.

  38. 38.

    Id. at 14.

  39. 39.

    Id.

  40. 40.

    Hoover, supra note 6, at 94.

  41. 41.

    Challenges for Police, supra note 13, at 19.

  42. 42.

    Hovell, supra note 17, at 450.

  43. 43.

    Id. at 452.

  44. 44.

    Ryngaert, supra note 8, at 507.

  45. 45.

    Id.

  46. 46.

    Challenges for Police, supra note 13, at 5.

  47. 47.

    Varney & Zduńczyk, supra note 26, at 3.

  48. 48.

    Challenges for Police, supra note 13, at 5.

  49. 49.

    Id. at 18.

  50. 50.

    Id.

  51. 51.

    See id.

  52. 52.

    Id. at 21.

  53. 53.

    Id.

  54. 54.

    See id.

  55. 55.

    See Hoover, supra note 6, at 103.

  56. 56.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 93(10), available online.

  57. 57.

    Id.

ICC as a Partner for States Trying Universal Jurisdiction Cases

I. Introduction

As a greater number of states try universal jurisdiction-based cases, it is apparent that the International Criminal Court (ICC) should make itself a better partner for these states. Universal jurisdiction allows states to try crimes, similar to those outlined in the Rome Statute,1 no matter where the crime occurred or who was involved; however, not all states have enacted the legal framework or developed the structure needed to try these cases. Analyzing states such as Sweden, Germany, Finland, and France that continue to try universal jurisdiction-based cases establishes common threads amongst states who do try these cases. While each state is unique in their respective laws and infrastructure, they have each developed specific legal frameworks modeled after the Rome Statute and implemented infrastructure such as head investigators and crime units to drive the investigation. Additionally, research has shown the importance of “institutional knowledge” for trying these cases. Essentially, states that have tried a case already are more likely to try a case in the future as a result of gained institutional knowledge. Accordingly, the ICC can utilize the Assembly of States Parties at the Hague to train states for trying universal jurisdiction-based cases. Furthermore, from these training sessions and discussion from states that have been successfully trying cases, needed amendments for evidence produced under Rome Statute Article 90(3) can be developed.

In order to address how the Office of the Prosecutor can make itself a more effective partner for State exercise of universal jurisdiction, a background of universal jurisdiction is key. There are several types of jurisdiction including both prescriptive and universal jurisdiction.2 Pursuant to international law, prescriptive jurisdiction allows a nation to apply their own national laws to activity that impacts their national or sovereign interests.3 According to this principle, a State may exercise jurisdiction over activity that happens in their own territory or includes its nationals.4 Furthermore, a State could claim jurisdiction over behavior that is against a State’s security or state functions.5 In contrast with prescriptive jurisdiction which relies on a “nexus to a national entitlement of the State claiming jurisdiction,” universal jurisdiction requires no nexus.6 Universal jurisdiction can be defined as:

[A] legal principle allowing or requiring a state to bring criminal proceedings in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim.7

Under the principle of universal jurisdiction, the very act of specific crimes notated under international law creates jurisdiction for all States no matter where the crimes happened or who was involved.8 Crimes that qualify for universal jurisdiction are serious crimes that violate international law such as crimes against humanity, war crimes, genocide, and torture.9

The two “permanent criminal law enforcement regimes available” when a state has a tie to a recognized core international crime are universal jurisdiction by States and the ICC.10 For a state to try a crime under universal jurisdiction, there are essentially three pieces required

  1. Specified grounds for exercise of jurisdiction,

  2. A well-defined offense, and

  3. Means for the nation to enforce the exercise of jurisdiction.11

The Rome Statute and the principle of complementarity gives express preference for domestically led prosecutions.12 Accordingly, there may be a preference to defer to a State to exercise universal jurisdiction, where possible, in line with goals set out by the Rome Statute. While cases may be deferred to states, the recent case for Rohingya demonstrates ICC investigations and State exercise of universal jurisdiction are not mutually exclusive.13 Additionally, while the principles set out in the Rome Statute promote working together, Article 90(3) of the Rome Statute currently outlines the hierarchy for extradition in the case that a state receives requests to extradite an individual from both the ICC and another state, that is a member or not, simultaneously.14 Under this Article, the ICC is given preference over competing requests. It is clear that to promote collaboration and make the ICC a more effective partner with states exercising universal jurisdiction, there are several changes that the ICC could make. These changes could include a multi-faceted approach including training and amending Article 90(3).

II. Exemplary State Exercise of Universal Jurisdiction

Scholars have expressed varying opinions on the history of states exercising universal jurisdiction. While some have described it as a “rise and fall” pattern with it being on the decline, others have disagreed asserting that states exercising universal jurisdiction has been quietly on the rise.15 Specifically, a recent study gathered data on universal jurisdiction and made several findings. First, “the sum total of cases initiated and the defendants tried on the basis of universal jurisdiction has continued to rise.”16 Additionally, each year in the last decade has had “at least one universal jurisdiction-based prosecution brought to trial, and […] there have been more such trials than in the prior two decades combined.”17 Moreover, the exercise of universal jurisdiction has grown to cover more geographic areas.18 As other researchers have asserted this motivation to increase universal jurisdiction-based cases has grown in part due to the shortcomings of the ICC, as a result of budget constraints and limited jurisdiction, the need for cooperative ICC efforts for universal jurisdiction-based cases is clear.

According to the study completed, prior to 1988 there were 286 universal jurisdiction cases tried, from 1988 to 1977 there were 342 cases, from 1998 to 2007 there were 503 cases, and from 2008 to 2017 there were 815 cases tried.19 Individual states that have tried universal jurisdiction cases have experienced different patterns and surges of cases depending on events that have impacted States in varying ways; however, looking to individual states with histories of completing trials can be informative. Specifically analyzing political conditions and enactments of laws that empowered states to try universal jurisdiction-based cases is significant.

A first state that can be analyzed is Sweden, who has tried nine cases between 2008 and 2017.20 Sweden and other Nordic states have taken on a greater role trying cases particularly due to Middle Eastern and Syrian related crimes.21 In July 2014, Sweden’s Parliament issued the Act on Criminal Responsibility for Genocide, Crimes against Humanity, and War Crimes.22 This Act models the Rome Statute. Furthermore, Sweden has a War Crime Unit which is “responsible for all investigations into genocides, crimes against humanity and war crimes.”23 This infrastructure has allowed Sweden to develop a system in which universal jurisdiction cases can be successfully brought and tried. As a positive consequence, NGOs have actively promoted Sweden as a potential option for trying crimes committed in Syria.24 For example, the Syria Justice and Accountability Center offers a “Guide to National Prosecutions in Sweden for Crimes Committed in Syria.”25 Accordingly, Sweden can be instructive in understanding how laws, infrastructure, and a focus tended towards certain crimes can develop a successful system for trying universal jurisdiction-based crimes.

Another state that can be instructive is Germany, who has tried five universal jurisdiction cases between 2008 and 2017.26 Similar to Sweden, Germany has laws aimed to ICC eligible crimes modeled after the Rome Statute. Specifically, their Code of Crimes against International Law (CCAIL) that was enacted in 2002 and revised in 2016.27 Germany has recently tried cases trying crimes committed in a variety of geographic ranges. For example, they tried cases for both crimes against humanity and war crimes committed in Syria.28 They even made history for the first criminal trial for governmental torture committed in Syria.29 Additionally, they have tried cases outside Syria such as the case against militia leaders in Congo.30 Notably, the German delegation at a United Nations General Assembly made their commitment to trying universal jurisdiction-based crimes known stating:

The message is clear: those who commit atrocities cannot feel safe. They will eventually be held accountable. There is no safe haven for perpetrators of international crimes against criminal prosecution in Germany.31

Furthermore, the German government has highlighted their hope that the universal jurisdiction-based trials will have “symbolic power” and be “pioneering work” for other states.32 This demonstrates their willingness to be leaders and teach other states how to successfully try universal jurisdiction-based crimes.

In addition to Germany and Sweden, Finland can serve as another informative example of a state that has success trying universal jurisdiction cases. From 2008 to 2017, Finland has had five universal jurisdiction trials.33 Finland has adopted the Finish Criminal Code and the Decree on the Application of Chapter 1, Section 7 of the Criminal Code (Decree) which covers international crimes that fall under their universal jurisdiction.34 The crimes include genocide, crimes against humanity, war crimes, and torture, in line with crimes outlined by the Rome Statute. Moreover, the Decree covers modes of liability and temporal application.35 Lastly, they have outlined universal jurisdiction requirements.36 In addition to the Finish Criminal Code, the Criminal Investigation Act outlines investigations and appoints the Head Investigator who works with the Finnish Police of the National Bureau of Investigation (NBI). Furthermore, it outlines the Homicide/Serious Crimes Unit of the NBI oversees the investigations.37 The legal framework and corresponding infrastructure has enabled Finland to successfully try universal jurisdiction cases such as those against Iraqi nationals, Hadi Habeeb Hilal and Jebbar Salman Ammar for war crimes.38 Despite its success, Finland has previously highlighted the need for a more well-defined notion for the principle of universal jurisdiction. In its statement to the U.N. in 2013, Finland noted:

The principle of universal jurisdiction is not a novelty in criminal law. It is generally agreed that international customary law allows the use of universal jurisdiction with regard to certain international crimes but views are divergent as to the exact scope of the principle. Underlying notions of universal jurisdiction may also be contained in conventions which oblige their states parties to either extradite or prosecute suspects of acts prohibited by such conventions, although the two concepts are separate and distinct from each other.39

This observation can help to be a guiding point for solution proposals for how the ICC can be a more effective partner.

France is another state that has had a recent history of successful universal jurisdiction-based trials. Of note, from 2008 to 2017 France has had four universal jurisdiction trials.40 In 2010, the French Code of Criminal Procedure was amended to model the Rome Statute.41 It gave French courts universal jurisdiction over genocide, crimes against humanity, and war crimes. Notably, in addition to the commonly recognized crimes under the Rome Statute, the Code of Criminal Procedure criminalizes enforced disappearance and torture under war crimes and crimes against humanity. While courts were given expanded rights under this Code, France defined the standard for courts to exercise universal jurisdiction, where the standard changes subject to the type of crime committed. Specifically, two frameworks were created:

[O]ne that applies to cases involving torture, enforced disappearance, and crimes committed in the former Yugoslavia and Rwanda, and another for all other grave international crimes cases.42

Furthermore, French law provides the framework for criminal proceedings, allowing them to be brought by either prosecutors or private parties.43 France’s framework has resulted in the capability of trying a range of crimes such and leading structural investigations such as those in Syria.44

While other states discussed above have been informative on demonstrating how implementing laws for universal jurisdiction can be a game changer for success, Spain’s history shows the impact of narrowing laws. Specifically, how amending laws to reduce the universal jurisdiction capacity can be detrimental for trials. While Spain had played a critical role in early implementation of universal jurisdiction cases, amendments in 2009 to their legislation limited Spanish courts’ ability to exercise jurisdiction.45 As a result, there was a dramatic drop in cases tried. This outcome furthers the idea that nations need solid and robust legislation to permit successful universal jurisdiction-based case trials.

III. Proposal for Strengthening ICC Partnership for Universal Jurisdiction

A. Legislation and Infrastructure Commonalities in Successful States

The state examples above are instructive in showing common themes for nations that have been able to successfully exercise universal jurisdiction. Notably, Sweden, Germany, Finland, and France all have adopted legislation that models the Rome Statute. While every state has slight variances in the specifics of the framework, they all enable their respective judiciaries to exercise universal jurisdiction with clear and defined boundaries, outline who can bring cases, and explain other procedures such as appeals and immunities. Additionally, these nations have infrastructure that is set up to handle the investigations of these crimes, such as Sweden’s War Crime unit.

B. Observations from States that Repeatedly Try Cases

In explaining the driving factors for the “quiet” growth of universal jurisdiction, researchers pointed out the impact of institutional learning.46 Institutional learning is a theory that an institution has the “capability” to “learn about, adapt and change” operational strategies and institutional frameworks.47 This can be accomplished through learning by doing, using, or interacting.48 A notable trend based on the data of states who try universal jurisdiction cases is that:

[A] majority of states that have held one or more universal jurisdiction trials in the last decade did so after having held at least one such trial in the previous decade. And, among those states that had no trials held before 2008, all but one conducted more than one trial in the years between 2008 and 2017.49

The researchers asserted this pattern correlates to the argument that states that have exercised universal jurisdiction are more likely to exercise it again in the future as a result of the gained “institutional knowledge.”50 Accordingly, it is arguable that legislation, infrastructure, and institutional knowledge form the basis for successfully trying universal jurisdiction-based cases. It can be asserted the ICC could become a more effective partner through orchestrating training other nations that do not yet have the infrastructure or institutional knowledge.

C. Using the Hague

Article 112 of the Rome Statute outlines the requirement for the Assembly of States Parties to meet “as often as necessary, but at least once a year.”51 Every State Party has a single representative in the Assembly. The Assembly provides oversight to the Presidency, the Prosecutor and the Registrar, along with adopting the Rules of Procedure and Evidence and Elements of Crime.52 While Assembly meetings may be held in New York at the U.N. headquarters, they are often held at the Hague, which additionally serves as the ICC headquarters.53 Accordingly, the Assembly of States Parties at the Hague, may pose a unique opportunity for the ICC to make itself a more effective partner to states exercising universal jurisdiction. This could be accomplished through a multi-part approach of teaching, discussion to narrow core principles of universal jurisdiction, and amend Article 90(3) as needed at a Hague Assembly of States Parties.

First, the Hague Assembly of States Parties could be utilized as a training ground for states that need help successfully trying or have not yet tried universal jurisdiction cases. Member states such as those analyzed above could discuss implementation of legal framework to support universal jurisdiction. While each member state would need to develop and implement their own laws for their specific needs, this would at least help guide member states for what may or may not work. Additionally, successful member states could teach what infrastructure is needed to investigate cases, such as crime units. Finally, member states that have tried universal jurisdiction could help walk other states through successful and unsuccessful trials step-by-step. This teaching process could arguably serve as a method of institutional learning, which has been demonstrated to equate to continued success for trying universal jurisdiction-based cases.

Next, during the Assembly, the States parties could work together to discuss and recognize more defined principles of universal jurisdiction. Ideally, this would help address the issues with the overall rule of law capacity, as this was a problem highlighted by Finland above. Though states do not need to adopt the exact same legal framework and understanding of universal jurisdiction principles, having more similar or common understanding would help guide what crimes fall under universal jurisdiction. Further, it could help guide extradition or prosecution of suspected criminal actors.

Lastly, in addition to orchestrating training of member states, the ICC could use these discussions to inform potential amendments to Rome Statute Article 90(3). Member states that have tried universal jurisdiction-based cases are critical in helping to identify what evidence and assistance may be most beneficial for the ICC to provide where available. Ideally, through the process of training other member states, states that have tried crimes could point to instances in which evidence or other assistance may have been dispositive, which could help guide the amendments needed.

IV. Conclusion

The ICC has the unique opportunity to use the expertise of states that have tried universal jurisdiction-based cases to train other states on trying cases. States that are trying universal jurisdiction-based cases can be instrumental in the ICC being a better partner for states trying universal jurisdiction-based cases. Analyzing states that have been previously successful in repeatedly trying cases highlights the need for laws and infrastructure in order to tackle universal jurisdiction-based cases. In addition, researchers have demonstrated that institutional knowledge is a key component for nations trying and continuing to try universal jurisdiction-based cases. The ICC at the States Parties Assembly at the Hague has the opportunity to coordinate and manage training of states that are not yet trying cases or have not successfully tried a case. The ICC could organize state representatives from nations such as Sweden, Germany, Finland, and France to train other nations in their implementation of laws that model the Rome Statute and their respective infrastructures such as appointing head investigators or developing crime units. Additionally, the ICC can use the feedback and training during these meetings to develop ideas on what amendments may be helpful for Rome Statute Article 90(3).

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

  1. 1.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Article 5, available online.

  2. 2.

    Anthony D’Amato, The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1110, 1113 (Oct. 1982), paywall, doi.

  3. 3.

    Anthony J. Colangelo, Universal Jurisdiction as an International “False Conflict” of Laws, 30 Mich. J. Int’l L. 881 (2009), available online.

  4. 4.

    Restatement (Third) of The Foreign Relations Law of the United States § 402(1)(a) (1987), [hereinafter U.S. Foreign Relations Law Restatement], available online.

  5. 5.

    Id. § 402(3).

  6. 6.

    Colangelo, supra note 3, at 887.

  7. 7.

    Xavier Philippe, The Principles of Universal Jurisdiction and Complementarity: How do the Two Principles Intermesh?, 88 Int’l Rev. Red Cross 377 (Jun. 2006), available online.

  8. 8.

    U.S. Foreign Relations Law Restatement, supra note 4, at § 404; Leila Nadya Sadat, Redefining Universal Jurisdiction, 35 New Eng. L. Rev. 241, 246 (2001), available online.

  9. 9.

    International Criminal Court, Elements of Crimes, ICC-ASP/1/3, Adopted and Entry into Force 9 September 2002, updated at Kampala, 31 May-11 June 2010 (Jun. 11, 2011), available online.

  10. 10.

    See, e.g., Máximo Langer, The Archipelago and the Wheel: The Universal Jurisdiction and the International Criminal Court Regimes, in The First Global Prosecutor: Promise and Constraints 204 (Martha Minow, Cora True-Frost & Alex Whiting eds., 2015), available online.

  11. 11.

    Philippe, supra note 7, at 379.

  12. 12.

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

  13. 13.

    Kanishka Kewlani, Three Avenues to Justice for the Rohingya, Bulletin (Feb. 17, 2022), available online.

    (In this case, the Rohingya people allegedly suffered persecution at the hands of the Myanmar government. While Myanmar is not a party to the ICC, the ICC authorized the ICC Prosecutor in 2019 to investigate due to the crimes taking place on the boarder of Myanmar-Bangladesh and Bangladesh is a state party. Additionally, in 2019 the Burmese Rohingya Organization UK filed a complaint with the Argentinian national criminal court against Myanmar pursuant to the principle of universal jurisdiction).

  14. 14.

    Rome Statute, supra note 1, at Art. 90.

  15. 15.

    Máximo Langer, Universal Jurisdiction is Not Disappearing: The Shift from “Global Enforcer” to “No Safe Haven” Universal Jurisdiction, 13 J. Int’l Crim. Just., 245 (May 2015), paywall, earlier version, doi.

  16. 16.

    Máximo Langer & Mackenzie Eason, The Quiet Expansion of Universal Jurisdiction, 30 EJIL No. 3, 779, 781 (Aug. 2019), available online, doi.

  17. 17.

    Id.

  18. 18.

    Id.

  19. 19.

    Id. at 785.

  20. 20.

    Id. at 794.

  21. 21.

    Id. at 787.

  22. 22.

    Act on Criminal Responsibility for Genocide, Crimes, Against Humanity and War Crimes, SFS 2014:406 (Jun. 11, 2014), available online.

  23. 23.

    War Crime—Swedish Police Efforts, Polisen, available online (last visited Aug. 29, 2023).

  24. 24.

    Syria Justice and Accountability Centre, A Guide to National Prosecutions in Sweden for Crimes Committed in Syria (Sep. 2, 2019), available online.

  25. 25.

    Id. at 1.

  26. 26.

    Langer, supra note 15, at 794.

  27. 27.

    Code of Crimes Against International Law (Germany), Fed. L. Gazette vol. 1 at 2254 (Jun. 26, 2002, as last amended Dec. 22, 2016), available online.

  28. 28.

    Human Rights Watch, Germany: Conviction for State Torture in Syria (Jan. 13, 2022), available online.

  29. 29.

    Verdict Based on Principle of Universal Jurisdiction, Deutschland.de (Jan. 14, 2022), available online.

  30. 30.

    Cristian González Cabrera & Patrick Kroker, A Congo War Crimes Decision: What It Means for Universal Jurisdiction Litigation in Germany and Beyond, Just Security (Jan. 11, 2019), available online.

  31. 31.

    Statement, Federal Republic of Germany, The Scope and Application of the Principle of Universal Jurisdiction U.N. Sixth Committee (Oct. 12, 2022), available online.

  32. 32.

    Jenny Gesley, FALQs: The Exercise of Universal Jurisdiction in Germany, Lib. Cong. Blogs, § 4 (Jun. 30, 2022), available online.

  33. 33.

    Langer, supra note 16, at 794.

  34. 34.

    Criminal Code (Finland), 626/1996, International Offence Ch. 1, § 7, (as amended 2015), available online (trans.); Decree on the Scope of Application of the Criminal Code (Finland), International Offence Ch. 1, § 7 (Aug. 16, 1996), available online.

  35. 35.

    Open Society Justice Initiative & Trial International, Universal Jurisdiction Law and Practice in Finland (Feb. 2020), available online.

  36. 36.

    Id. at 12.

  37. 37.

    Id.

  38. 38.

    Second Iraqi Fighter Found Guilty of War Crimes in Finland, Radio Free Europe, Mar. 23, 2016, available online.

  39. 39.

    Statement, Sari Mäkelä, Permanent Mission of Finland, The Scope and Application of the Principle of Universal Jurisdiction, U.N. Sixth Committee (Oct. 17, 2013), available online.

  40. 40.

    Langer, supra note 16, at 794.

  41. 41.

    Code de Procédure Pénale, Arts. 689–2, 689–13 (in force Mar. 2, 1959) (fr.), available online.

  42. 42.

    Human Rights Watch, The Legal Framework for Universal Jurisdiction in France (2014), available online.

  43. 43.

    Id. at 4.

  44. 44.

    Langer, supra note 16, at 787.

  45. 45.

    Id.

  46. 46.

    Id. at 792.

  47. 47.

    Björn Johnson, Institutional Learning, in National Systems of Innovation: Toward a Theory of Innovation and Interactive Learning 20, 23 (Bengt-Åke Lundvall ed., 2010), paywall, doi.

  48. 48.

    Id.

  49. 49.

    Langer, supra note 16, at 793.

  50. 50.

    Id.

  51. 51.

    Rome Statute, supra note 1, at Art. 112.

  52. 52.

    Id.; see also Assembly of States Parties, ICC, available online (last visited Aug. 29, 2023).

  53. 53.

    Id.

The success of the International Criminal Court (ICC) revolves around its jurisdictional structure and the complementarity component of its legal system and it may very well be quantifiable by how few situations the Court will have to prosecute.1 This is not because of the quixotic belief that the ICC can serve as a better court of law and custodian of world peace and justice, but because of its default statutory jurisdiction which is activated only upon the failure of the domestic criminal courts to prosecute the overlapping crimes against humanity, in a fully and fairly fashion. A quarter of a century later, while the record speaks for itself, it can be asserted that in the last two decades, the domestic judicial systems of the State-parties to the Rome Statute are unable to complement the jurisdictional structure and the complementarity principle of the ICC. Ideally, if the domestic courts were independent and adequately equipped in proportion to the gravity of the crimes committed to secure criminal responsibility, the situations would have been different. Thus, the proposed solution is adopting the principle of universality to further invoke the extraterritorial jurisdiction of the ICC by reason of the principle of complementarity as enshrined under Article 17 of the Rome Statute.2

While there is substantial unclarity surrounding the definition of universal jurisdiction, commentators have narrowed it down to be:

[T]he principle that certain crimes are so heinous, and so universally recognized and abhorred, that a state is entitled or even obliged to undertake legal proceedings without regard to where the crime was committed or the nationality of the perpetrators or the victims.3

By expanding this definition, two postulations of universal jurisdiction are identifiable. Firstly, this extraterritorial criminal jurisdiction permits the States (including the non-State parties to the Rome Statute) to initiate unilateral investigations, adjudications, and enforcement of laws without territorial relation to the locus of the crime, in the absence of any citizenship interrelatedness of either the victims and/or the perpetrators.4 And secondly, the gravity of the crimes is such that it violates the jus cogens norms due to which all States are voluntarily permitted to exercise unilateral jurisdiction under the principles of universality.5 To further elaborate, the States without prescriptive jurisdiction but under international obligation can prosecute the perpetrators in violation of its laws beyond the frontiers of their State hinged upon any of the three parameters, that is, the laws of the State, international treaty/convention, or for the commission of universally recognized international crimes that pose a significant threat to the international community at large.6

This raises the challenge that how can the domestic courts of the specific State in question that have no traditional delegation of the jurisdiction (fictive or real) initiate criminal proceedings over the crimes on behalf of the ICC. Unlike the definition of universal jurisdiction, the answer to this question is simpler. This is attributable to the principles of complementarity. As per the text of Article 17 of the Rome Statute,7 the ICC is statutorily permitted to initiate investigations and prosecute crimes under international humanitarian law either through ratione loci and/or ratione materiae.8 Despite this, provision of law, there continues to be a plethora of international criminal cases across continents that are beyond the admissibility and the jurisdictions of the ICC either because of its statutory limitations and/or because of logistical and financial feasibility.9 Thus, by the virtue of these inadequacies in relation to the complementarity principle, the ICC can encourage domestic courts to adopt the universality principle and commence criminal proceedings.

Before getting into greater depths of the application of the principle of universality under the regime of the ICC, the author of this comment would like to strongly assert that, this doctrine is one of the most complicated illustrations of a complex international framework hegemonizing the exercise of extra-territorial jurisdiction by the domestic judicial systems.10 Amongst the scholars of the international legal society, it is a common notion that universal jurisdiction especially that of the ICC, is invoked when the crimes committed by State leaders shock the conscience of humanity and it cannot be shunned away and most certainly cannot go unpunished.11 It is thus, an implicit obligation of the domestic criminal courts to hold perpetrators accountable for individual criminal responsibilities. Nonetheless, today’s practicality is nowhere in proximity to this idealism.

While it is not wrong to argue that justice remains undelivered for years to come especially in States where the State leaders are the prime perpetrators who escape criminal accountability by exercising either the principles of sovereignty or the unimpeachable frontiers of domestic jurisdiction.12 This is an incomplete portrayal of the real imagery. There is a good deal of assertions to make this statement. The primary justification is that there are no specific legal principles laid down to activate the universal jurisdiction of the ICC under international criminal and humanitarian law. Over and above that, the type of international crimes committed is not the same and simple as they were two decades ago. Therefore, it is often deliberated whether the Office of the Prosecutor (OTP) of the ICC while assisting the domestic courts under the complementarity principle while invoking the universal jurisdiction should prosecute only criminal cases or civil cases, or both. Simultaneously, the scope of the authority of the OTP while exercising universal jurisdiction must also be discussed. Furthermore, significant considerations have been given to whether the OTP should invoke universal jurisdiction on crimes that are not ratified under Article 5 of the Rome Statute13 but are internationally recognized as egregious crimes. This comment attempts to analyze and contribute to these postulations eclipsing the applicability of the universal jurisdiction of the ICC.

It is hotly debated by the academic minds of international law that it is toilsome to discern coherent principles concerning establishing universal jurisdiction.14 Despite there is no set of rules that automatically activate the universal jurisdiction over a class of offenses, efforts have been made by scholars to lay down comprehensive requisites for establishing universal jurisdiction. As a matter of general principle, to activate universal jurisdiction, the offense committed must be recognized as an international concern so as to be able to invoke either of the traditional theoretical rationales. The two rationales for universal jurisdiction are (i) the pragmatic rationale and (ii) the humanitarian rationale.15 The crux of the pragmatic rationale is that it “provides a basis for the jurisdiction when jurisdiction is hard to be found.”16 This theoretical rationale for universal jurisdiction is premised on the understanding that universal jurisdiction shall only be able to respond to the danger that neither of the States can and is willing to comply with the requirements of their traditional domestic criminal jurisdiction (such as subject matter jurisdiction of the offense(s) committed or territorial jurisdiction established between the prosecuting State(s) and the perpetrator(s) ).17 Furthermore, on the other hand, as the name suggests, under the humanitarian rationale if the crimes are considered to be unspeakably atrocious and sufficiently damaging to the larger international community, then any State of this community has the right to initiate prosecution proceedings against such crimes.18 This arises from the implicit obligation as members of the international community to ensure that the perpetrators hostis humani generis do not go unpunished while preserving peace and restoring justice.19 This theoretical rationale is free from the restrictions of principles of territoriality and primordially concerns itself with the nature and gravity of the committed crimes. Conceptually speaking, even though the two theoretical rationales seem independent of one another, in practice they are very much intertwined which would be evident while discussing the scope of application of the principle of universality for human trafficking.

Before we discuss the scope of applicability of the principle of universality for crimes that are not specified under the Rome Statute, it is crucial to deliberate upon whether this principle, when invoked by the OTP, should apply only to international criminal offenses or can the same rationale also be extended to international civil offenses? In order to extend the extraterritorial jurisdiction of the ICC, it is pivotal to establish that the varied types of international civil offenses satisfy the two traditional theoretical rationales mentioned above. The territorial jurisdiction for a majority of international civil offenses is generally easily established owing to where the contract was signed or where the transaction was completed, thereby satisfying the pragmatic theoretical rationale. However, on the offset, there may be some international civil offenses where establishing such jurisdiction may be complicated. To illustrate better, several jurisdictions of domestic courts of different States can be involved in offshore white-collar crimes or money laundering transactions wherein narrowing down the primary territorial jurisdiction of a domestic court of the law becomes laborious. As a result of which the pragmatic theoretical rationale may not be satisfied. Thereby, in such situations, it is rudimentary to also satisfy the elements of the humanitarian theoretical rationale. As per the language of this rationale, the particular international offense should be at odds with the fundamentals of the jus cogens norms while being of such gravity that it can shock the conscience of humanity while creating an obligation over the States to take legal actions.20 The same seems like an overestimation for international civil offenses, which is why the international civil offenses do not satisfy the two suggested theoretical rationales necessary to establish extraterritorial jurisdiction of the ICC under the principle of universality, in its entirety. Henceforth, it is advisable that the OTP should solely focus on applying universal jurisdiction to international criminal offenses and not international civil offenses.

Now that it has been laid down that the focus of the OTP should be limited to only crimes under international humanitarian law, the next question surfacing is whether the OTP should inculcate crimes that are not enshrined under Article 5 of the Rome Statute21 and extend its expertise and resources to such crimes under the universality principle? The answer to this hypothesis is positive. For this hypothesis, this comment only discusses one such international crime that is not a part of the Rome Statute but is very much a global concern against humanity, that is, human trafficking. In this section of the comment, the author addresses the preliminary questions of is universal jurisdiction over non-Rome Statute crimes such as human trafficking necessary under the pragmatic rationale. And is human trafficking a sufficiently dangerous crime that concerns all of humanity? Thus, whether universal jurisdiction can be extended to human trafficking?

Modern slavery has been a global concern for nearly a century now, especially crimes such as human trafficking wherein States have been unable to comply with their judicial obligations. But this is attributable to a multitude of reasons because of which either human traffickers have not been prosecuted or the victims have not received any kind of reparations. One such reason is States that are crippled by the terror and/or bribes of organized human trafficking groups due to which the national judiciary of such States is unable to enforce laws against human trafficking.22 Taking advantage of the inability and unwillingness of such States to prosecute, organized groups continue to take advantage of these incapacities and operate internationally. Another common reason is the ineffective extradition treaties between such a State where the human trafficker groups operate from and the State that wishes to initiate prosecution proceedings. Lastly, States that can prosecute are unable to owe to the lack of jurisdictional connections or because human traffickers are captured on high seas wherein no State can prosecute them. As a result of which, an abhorrent crime such as human trafficking is outside the realm of international criminal law and far beyond the prosecutor’s reach of the ICC.

Having said that, extending the application of extraterritorial jurisdiction of the ICC under the principle of universality by virtue of the principle of complementarity may become the efficacious solution to the concerns of human trafficking. The nature and gravity of human trafficking are such that the two theoretical rationales that are pragmatic rationale and humanitarian rationale are well satisfied. Since the universal jurisdiction can be extended to human trafficking, it will authorize domestic courts of States to initiate investigations and prosecute perpetrators of human trafficking which earlier was impossible. Even though it is amply evident that under pragmatic reasons States have a way to prosecute crimes related to human trafficking under the principle of universality, it is still not evident if there is an urgent need to do the same, leading us to believe that universal jurisdiction may only be exercised in the rarest of the rare situations.23 To avoid this, it is required to transform the theories of application of principles of universality for human trafficking into reality with the assistance of the OTP.

This portion of this comment analyzes the debate between the supporters and critics of universal jurisdiction about when invoked by the ICC would be the right approach for prosecuting four core crimes beyond the statutory jurisdiction of the Court. Followed by determining the scope of authority of the OTP while extending its resources and skills to domestic courts by virtue of the principles of complementarity to assist domestic courts in effective and regular internal prosecutions in eliminating atrocities related to human trafficking.24

One of the bigger threats to successful commitment to universal jurisdiction is how the same is to be applied and upheld. Unlike the principle of complementarity, there are no clear steps or hierarchy to initiate investigations and prosecute perpetrators, first at the domestic courts of the State and upon its failure, second at the ICC. This leads to unprecedented discretion with the States opting for universal jurisdiction qualifying them “to prosecute international crimes independently from any link to their territory or nation.”25 As a result of this, multiple States may end up ascertaining territorial or subject-matter jurisdiction over the same case, infringing sovereignty and other principles of rule of law. Therefore, supporters of universal jurisdiction have mapped out a solution against the same “the priority of prosecution should be given to the states having a direct link to the crimes due to the territoriality or nationality of the perpetrator.”26 It is advisable that the vertical complementarity of the ICC and the State parties should be converted into horizontal complementarity, to enhance the coherent execution of the principle of universal jurisdiction.27 At the same time, as suggested by the supporters of universal jurisdiction, this does not prohibit bystander States who have no connection to the crime from exercising universal jurisdiction, however, this can only be invoked through universal jurisdiction when the nexus State is unable and/or unwilling to fulfill its judicial obligations.28 This amalgamation of the principle of complementarity with the principle of universality can be invoked against cases of human trafficking, allowing the OTP to bring such heinous cases under its jurisdiction.

On a similar note, the supporters argue that while being able to exercise universal jurisdiction, the ICC will also be able to investigate and prosecute state or quasi-state offenders who in the current regime escape criminal responsibility.29 This would most certainly be handy in holding such mid-level perpetrators of human trafficking accountable at the domestic as well as international level. Nonetheless, this will not be practical without cooperation between no nexus States, bystander States, and the incumbent official’s State of nationality. It is primordial to have harmonious cooperation between these States that are unable/unwilling to prosecute and the forum State to initiate preliminary investigations, assistance with evidence, compiling information and data, etc. to be able to fairly initiate proceedings.30 These modalities of inter-State judicial assistance can be brought forward for cases dealing with atrocities of human trafficking with the aid and encouragement of the OTP who shall overlook the responsibilities of such national proceedings to achieve the goal of narrowing the impunity gap.

However, there may be occasions wherein these States do not cooperate, thereby jeopardizing investigations and judicial proceedings. In such scenarios, what is the role of the OTP? Two solutions have been proposed in this regard. Above and all, the ICC must make a judicial determination where in the first scenario, it refers this to the Assembly of States Parties or the U.N. Security Council.31 And in the second scenario, it makes no such judicial determination is made, but there is sufficient reasonable belief of incoming non-cooperation that requires urgent attention of the Assembly of States Parties or the U.N. Security Council.32 Therefore, the normative procedures established by the Assembly of States Parties can be used as a point of reference by the ICC to develop an effective and efficient mechanism for promoting as well as preserving inter-state cooperation which could be extended to cases of human trafficking.

On the contrary, the debate, the critics of universal jurisdiction have a lot to offer to the debate against the intentions of the ICC in exercising universal jurisdiction for crimes enlisted within and beyond the Rome Statute. Some of the predictable arguments against universal jurisdiction are that it poses a strenuous impact on the limited funding of the ICC, interruptions, and possible impairment of political solutions to systemic violence, hostilities in international relations, etc. On the same note, the critics also ardently opine that the execution of universal jurisdiction is much possible only through the aid and assistance of human rights organizations in the domestic constituencies especially surrounding heinous crimes under human trafficking.33 Unlike the supporters of universal jurisdiction, the critics of universal jurisdiction, are not astray from the political considerations that this form of extra-territorial jurisdiction brings forward. To further elaborate, the majority of the mass atrocities are committed by the sovereign heads of State, thereby creating diplomatic pressure on forum States, potential reprisals from bystander States, and compulsion to offer immunities to incumbent quasi-state and/or state officials.34 Thus, the incentive to engage in trials of high-cost officials is extremely low, as the case may be for organized crime lords participating in activities towards human trafficking.

The same argument, however, does not extend to low-cost and mid-cost officials of States where neither the political branch nor the domestic judicial institution of the official’s State of nationality is hesitant in opening formal proceedings to escort such prosecutions to trial through universal jurisdiction.35 This is because such low-cost even mid-cost incumbent officials pose little to no economic cost of trials as well as the metaphorical cost of international relations.36 Whereas, if the universal jurisdiction regime were to extend to high-cost officials, the international relations costs would be much higher inherently creating hostilities with other States. Thus, the incentives of political branches to apply universal jurisdiction to low-cost as well as mid-cost officials, supersede the overall disincentives towards universal jurisdiction.

While it may seem like there are greater demerits to invoking extra-territorial jurisdiction of the ICC by reason of the principle of universality, however, the same would be an incorrect postulation. With more States exercising universal jurisdiction, there are multiple avenues through which the OTP can make themselves an effective partner of regional judicial institutions pursuant to Article 90(3) of the Rome Statute,37 which could also be extended to crimes beyond the jurisdiction of the ICC such as human trafficking.

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

  1. 1.

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

  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, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 17, available online.

  3. 3.

    Allyson Bennett, That Sinking Feeling: Stateless Ships, Universal Jurisdiction, and the Drug Trafficking Vessel Interdiction Act, 37 Yale J. Int’l L. 433, 433 (2012), available online.

  4. 4.

    John Reynolds, Universal Jurisdiction to Prosecute Human Trafficking: Analyzing the Practical Impact of a Jurisdictional Change in Federal Law, 34 Hastings Int’l & Comp. L. Rev. 387, 392 (2011), available online.

  5. 5.

    Nicolaos Strapatsas, Universal Jurisdiction and the International Criminal Court, 29 MLJ 1, 3 (2002), available as download.

  6. 6.

    Reynolds, supra note 3, at 391.

  7. 7.

    Rome Statute, supra note 2.

  8. 8.

    Id.

  9. 9.

    Cedric Ryngaert, Universal Jurisdiction in an ICC Era, 14 Eur. J. Crim., Crim. L. & Crim. Just. 46, 49 (2006), paywall.

  10. 10.

    A. Hays Butler, The Doctrine of Universal Jurisdiction: A Review of the Literature, 11 Crim. L. Forum 353, 354 (2000), paywall, doi.

  11. 11.

    Shuvra Dey, Universal Jurisdiction and Cooperation between ICC Member States in Prosecuting Nationals of non-Member States, 3 Trento Student L. Rev. 61, 63 (2021), available online.

  12. 12.

    Henry A. Kissinger, The Pitfalls of Universal Jurisdiction, 80 Foreign Aff. 86, 86 (Jul. 2001), paywall, archived.

  13. 13.

    Rome Statute, supra note 2, at Art. 5.

  14. 14.

    Anne H. Geraghty, Universal Jurisdiction and Drug Trafficking: A Tool for Fighting One of the World’s Most Pervasive Problems, 16 Fla. J. Int’l L. 371, 379 (2004), available online.

  15. 15.

    Id.

  16. 16.

    Id.

  17. 17.

    Id.

  18. 18.

    Id. at 380.

  19. 19.

    Id.

  20. 20.

    Butler, supra note 10, at 356.

  21. 21.

    Rome Statute, supra note 2, at Art. 5.

  22. 22.

    Geraghty, supra note 14, at 387.

  23. 23.

    Id. at 389.

  24. 24.

    Juan Carlos Sainz-Borgo, The International Criminal Court, Drug Trafficking and Crimes against Humanity: A Local Interpretation of the Rome Statute, 15 J. Juris. 373, 379 (2012), available online.

  25. 25.

    Dey, supra note 11, at 69.

  26. 26.

    Id. at 70.

  27. 27.

    Id. at 71.

  28. 28.

    Id. at 72.

  29. 29.

    Harmen van der Wilt, Universal Jurisdiction under Attack: An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States, 9 J. Int’l Crim. Just. 1043, 1054 (2011), available online, doi.

  30. 30.

    Dey, supra note 11, at 67.

  31. 31.

    Id. at 82.

  32. 32.

    Id. at 83.

  33. 33.

    Máximo Langer, The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes, 105 Am. J. Int’l L. 1, 1–6 (Jan. 2011), online, earlier version, doi.

  34. 34.

    Id. at 5.

  35. 35.

    Id. at 4.

  36. 36.

    Id. at 3.

  37. 37.

    Rome Statute, supra note 2, at Art. 90(3).

A Win-Win Situation: Cooperation Between the International Criminal Court and Regional Organizations

I. Introduction

This comment addresses the challenges that the International Criminal Court (ICC) faces in today’s rapidly changing world. Some people are disappointed that only a few perpetrators have been tried by the ICC, and that the vast majority have so far escaped consequences for their crimes. Some countries are concerning the ICC will interfere their internal affairs as well as their national sovereignties.

However, cooperating with regional organizations may be a proper solution to these problems. Regional organizations have a better understanding of local governments and people, as well as local problem-solving approaches and political situations, and can promote peaceful solutions to problems before large-scale conflicts occur. If regional organizations can resolve regional conflicts by a more peaceful means, thereby reducing the likelihood of mass atrocities, then they can help the work of international criminal tribunals in their role of preventing mass crimes. And, with fewer procedural constraints than the ICC, regional organizations may be more efficient than the ICC in resolving local problems.

This comment argues four aspects that the ICC can cooperate with regional organization. First is the ICC can use their extensive influence in the international community to facilitate or even help them to find sponsor to the work of regional organizations. Second, the ICC could send some of their experts to regional organizations to give them some training courses both in how to work legally in local issues and how to draft internal regulations. Third, the ICC can consult with regional organizations on how to publicize, in what form, and with what content to achieve the best results, in order to develop the most effective and targeted means of publicizing in a region. Last but not least, an information linkage mechanism could be established between regional organizations and the ICC.

II. A New Challenge of Today

The international community of the Second World War has put in place many international and regional mechanisms for the protection of human rights, but millions of people still fall victim to genocide, crimes against humanity, war crimes and crimes of aggression. It is shameful that only a few of the perpetrators were finally trialed by international court, and the vast majority of them have escaped the consequences of their punishment to this day. Some commit their crimes with the full knowledge that there is only a small chance that they will be brought to justice. An the ICC would serve several purposes: to deter those who are prepared to commit or carry out serious crimes under international law; to enable national prosecutors, who have a fundamental responsibility to prosecute perpetrators, to carry out their duties; to bring truth and justice to victims and their families as a first step toward healing; to assist victims and their families in obtaining reparations; and to assist victims and their families in obtaining reparations when those in control of the state apparatus are unable or unwilling to ensure that human rights abusers are duly punished. When the groups in control of the state apparatus are unable or unwilling to ensure that the perpetrators of human rights violations are duly punished, mechanisms representing international justice must step in.

However, the ICC is now facing many challenges. Today, when we are looking at statistics of the ICC, we can’t help feeling a little bit disappointed that things did not go as well as we expected. It took International Criminal Tribunal for the Former Yugoslavia nearly twenty-five years and about $3 billion to try more than one hundred defendants.1 Trials in all of these tribunals have moved very slowly, taking years from arraignment to appeal. In some cases, delays in justice have turned into denials of justice.

Beside these slow trial procedures, there are many countries withdrawing the ICC in these years. On November 16, 2016, Russian President Vladimir Putin signed an order announcing his withdrawal from the ICC in The Hague, the Netherlands. According to RIA Novosti, Russian President Vladimir Putin has instructed the relevant ministries to inform the U.N. Secretary-General that Russia does not intend to become a member of the Rome Statute of the ICC.2 The U.S. initially signed the Rome Statute under the Clinton administration but later withdrew, under the leadership of George W. Bush. Sudan and Israel have also withdrawn their signatures in the past, while other nations—including China and India—have rejected membership outright.

In this case, the ICC need to work harder to achieve its goal of combating serious crimes and upholding justice and fairness. Cooperating with regional organizations can be a proper solution to this challenge we are facing today. However, the ICC has been working hard to accomplish its original goals, and despite pressure from all sides and often without sufficient understanding and support from the international community or even local people, the ICC has persevered in bringing the concept of fairness and justice to the world.

III. Regional Organizations in Solving Regional Conflicts

Peace and security are the eternal pursuit of human society, and there has been a long-standing dispute between globalism and regionalism on the issue of peace and security. After World War II, the political elites of the victorious countries established a collective security system centered on the U.N. Security Council, but with the changes in the international situation after the Cold War, the trend of regionalization of security emerged. In the post-Cold War period, especially in the last decade, regionalization of security is becoming an important feature of the new international security order, and the status and role of regions in the global security architecture is becoming increasingly prominent. Some scholars argue that regionalization, as the only intermediate channel between the state and globalization, can unify most social forces and serve as a buffer zone and medium between nation-states and the international community.3

Since February 2011, the Libyan conflict in North Africa has become the focus of international attention in recent years. The weak border defense between Libya and its neighbors, as well as the inextricable links between ideological and ethnic issues, have quickly turned the conflict into a regional event, and the situation in North Africa continues to be volatile. In terms of the consequences of conflict, the issue of human security in the African region is prominent, and in all conflicts, we see tragic scenes of displacement of innocent civilians, rampant disease, and massive population loss. In Congo, for example, the number of deaths directly or indirectly caused by conflict has exceeded the number of British deaths in World War I and World War II combined, while in the Darfur region of Sudan, nearly two million people have been displaced by civil conflict.4

However, despite being at the weakest link in the global security chain in the post-Cold War African region, the external support it can receive from the international community does not match its security needs. There are some reasons that caused this situation. First, in the face of the new security situation, the United Nations hopes that regional forces will share more and “undertake” the responsibility and obligation to maintain peace and security in the region. Second, the U.N. has shown a tendency to be selective in resolving regional conflicts.5 Third, major Western countries have adjusted their security policies toward the African region. The post-Cold War U.S. approach to regional security in Africa manifested itself in the need for Africa to assume its own responsibilities, and based on this purpose, the U.S. encouraged regional organizations to play a role in maintaining regional security.6

Under the influence of the above factors, external forces have been absent from security governance in the African region, which in turn has pushed African countries to seek to form mechanisms to maintain security at the regional level to bridge the gap between reality and needs. African countries have also begun to show more recognition of the involvement and role of their own regional organizations. In 2003, for example, the Sudanese government opposed the presence of international actors other than the African Union in Darfur, fearing that it would infringe on its sovereignty. It was only through the good offices of the international community that Sudan agreed to send a hybrid U.N.AU peacekeeping force to Darfur. Similarly, in the 2002 conflict between the Sudanese government and Southern opposition forces, the parties to the conflict also saw the East African Intergovernmental Authority on Development as a more appropriate actor to play a central role.

At the same time, regional organizations have some natural advantages in resolving conflicts in the region. For example, African regional organizations are located in the region and know the region better; they are the first to feel the impact of regional conflicts and have more urgent political will to respond quickly to conflict events; they intervene in regional conflicts with a more moderate action posture, which is more acceptable to the parties to the conflict. The relatively poor governance capacity of most African governments makes it easy for an internal conflict to spread into a regional threat, and regional organizations try to remedy and resolve this dilemma to some extent. All of these reasons make regional organizations uniquely positioned to play a role in regional conflict resolution actions that other international actors cannot.7

If regional organizations can resolve regional conflicts by a more peaceful means, thereby reducing the likelihood of mass atrocities, then they can help the work of international criminal tribunals in their role of preventing mass crimes.

IV. Cooperation Between the ICC and Regional Organization

If the ICC can enter into cooperative relationships with regional organizations and sign cooperation agreements, a win-win situation can be achieved. Compared with regional organizations, international criminal tribunals have broader influence and appeal at the international level; and regional organizations also have local mediation capacity that international criminal tribunals cannot have. For example, regional organizations can effectively break the time limit of international criminal tribunals by solving problems at the local level. International criminal tribunals need to follow procedural justice, but procedural justice also sacrifices efficiency to a certain extent. Regional organizations, on the other hand, do not need to be subject to too many procedural restrictions because they are not court trials, and they can be more flexible in solving problems locally.

Take African Union Mission in Burundi as an example, prior to the withdrawal of the AU Mission in Burundi (AMIB) from the mission area in 2004, a stabilization posture had been effectively maintained over 95% of Burundi’s territory, facilitating access for humanitarian relief supplies, and providing protection for the return of specially designated leaders. It can be said that AMIB has succeeded to some extent in ensuring the “political and economic security” of Burundi. And the stabilization of the situation in Burundi paved the way for the UN’s intervention, and the U.N. peacekeeping force in Burundi replaced AMIB in June 2004 to carry out the peacekeeping mission.8 This case clearly demonstrate that African regional organizations are uniquely positioned and can play a positive role in maintaining regional peace and security. Their familiarity with the region and their ability to respond quickly make them an “advance guard” in maintaining regional peace and security, but limited by their lack of resources and capacity, they often also need the support and assistance of the U.N. and Western powers.

The most obvious difficulties for regional organizations in carrying out their actions are their lack of capacity and resources. The African Union (AU), Economic Community of West African States (ECOWAS), and other African regional organizations generally face a lack of resources problem, with the AU mission in Sudan, the ECOWAS operations in Liberia, and in Sierra Leone eventually being taken over by the United Nations. In the case of the AU, for example, about one-fifth to one-quarter of member states are unable to meet their financial obligations to the AU, forcing the AU to rely more on external assistance and raising questions about the sustainability and ownership of the AU operations.9 The dilemma regional organizations are facing is where the ICC can actively engage and make some difference. While not necessarily in a position to support the work of regional organizations with their own funds, the ICC can use their extensive influence in the international community to facilitate or even help them to find sponsor to the work of regional organizations.

Second, the deep-rooted issues in the actions of regional organizations are then the basis for the legitimacy of actions within the framework of the organization. Regional organizations are an effective option for maintaining regional peace and security and can play a positive role in using local approaches to solve local problems. However, regional organizations also face a double dilemma in terms of reality and international law when establishing regional collective security mechanisms based on the concept of regionalization of security to cope with the conflict-ridden security situation. It is regulated in Constitutive Act of The African Union that:

[T]he right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.

It is clear that this provision draws on the relevant provisions of the Rome Statute, thus demonstrating the influence of international criminal tribunals on the legitimacy of regional organizations. It is understandable that regional organizations, with limited human and financial resources, often do not have the same number of legal and international political talents as the ICC, and therefore need the help of the ICC in drafting constitutional charters, establishing working regulations and ensuring the legitimacy of their work. It is practical that the ICC could send some of their experts to regional organizations to give them some training courses both in how to work legally in local issues and how to draft internal regulations.

Publicity is also another important part in cooperation between the ICC and regional organization. If cooperation can be reached with the ICC, in a way it means that a regional organization is recognized at the international level. And the ICC has also been committed to extending the concept of human rights, fairness, and justice to all regions. At a regional level, the ICC is likely to be less well known and recognized than a regional organization that is widely recognized within a region. The ICC can consult with regional organizations on how to publicize, in what form, and with what content to achieve the best results, in order to develop the most effective and targeted means of publicizing in a region. With their knowledge and experience in local community, regional organization can be a wonderful partner as well as counselor in publicity.

In addition, an information linkage mechanism could be established between regional organizations and the ICC, with regular communication and exchange of information between the two sides. In today’s international community, information is a very valuable resource. If the ICC can reach information cooperation with regional organizations, they can obtain timely information about the local political situation, armed conflicts, and even information about the defendants at the prosecution stage. The ICC can also share their understanding of the international political situation with regional organizations in a timely manner and use it to bring about the linkage and cooperation of more regional organizations. In this way, regional organizations have become information suppliers to the ICC, and the ICC has become a hub of information for many regional organizations. The ICC could even use this information advantage to hold regular meetings of regional organizations, not necessarily offline, but also online, to further promote inter-regional communication and conflict resolution.

V. Conclusion

Facing challenges today, the ICC should actively seek cooperation with regional organizations. There are four aspects for the ICC to seek cooperation with regional organizations, which is international criminal help regional organizations to find sponsors, the ICC send some of their experts to regional organizations to give them some training courses, the ICC and regional organizations help each other to publicize, establish information linkage mechanism between regional organizations and the ICC. Both parties should actively sign a cooperation agreement to define these details in order to seek long-term stable cooperation.

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

  1. 1.

    Marieke Irma Wierda, The Local Impact of a Global Court: Assessing the Impact of the International Criminal Court in Situation Countries, 90 (Jan. 9, 2019) (Ph.D. dissertation, Leiden Law School), available online.

  2. 2.

    Russia Withdraws from International Criminal Court Treaty, BBC News, Nov. 16, 2016, available online.

  3. 3.

    Zaki Laidi, A World Without Meaning: The Crisis of Meaning, in International Politics 140 (Sep. 14, 1998), available online, doi.

  4. 4.

    See Selim Jahan, United Nations Development Programme, Human Development Report 2015: Work for Human Development (2015), available online.

  5. 5.

    See Martti Koskenniemi, The Place of Law in Collective Security, 17 Mich. J. Int’l L. 455 (1996), available online.

  6. 6.

    International Relations Subcommittee on Africa, African Crisis Response Initiative: A Security Building Block, H.R. No. 107–20, 107th Congress (Jul. 12, 2001), available online.

  7. 7.

    Jane Boulden, Introduction, in Dealing with Conflict in Africa: The United Nations and Regional Organizations 3 (Jane Boulden ed., 2015), paywall, doi.

  8. 8.

    Festus Agoagye, The African Mission in Burundi: Lessons Learned from the First AU Peacekeeping Operation, ISS 9, 14 (Aug. 26, 2004), available as download.

  9. 9.

    The African Peace and Security Architecture, AU, available online (last visited Aug. 29, 2023).

Regional Complementarity: Mutually Beneficial Collaboration between Regional Courts and the ICC

I. Introduction

The International Criminal Court (ICC) is a unique forum for international justice, as the only international court charged with prosecuting individuals for genocide, crimes against humanity, war crimes, and the crime of aggression.1 Despite its unique place in international justice, the Court has long faced criticism, ranging from inefficiency in accomplishing its goals, to biased prosecutions. The Court’s pursuit of justice has largely been based on Western values, and it has disproportionately targeted African nations in its prosecutions.2

Regional courts such as the European Court of Human Rights, the Inter-American Court, and the African Court on Human and Peoples’ Rights also attempt to ensure international justice, albeit through different means. While not charged with pursuing individual criminal responsibility, these courts attempt to end global impunity through a variety of methods, mostly targeted at state actors. As the ICC faces a large caseload and struggles to secure prosecutions, regional courts present a valuable opportunity for mutually beneficial collaboration in pursuing the goals of international justice.

The ICC was formed with the intention of serving as a complementary court, meaning it would only step in to prosecute when national jurisdictions could not or would not pursue prosecutions on their own.3 Under the principle of complementarity, the ICC does not investigate or prosecute matters where justice is being genuinely pursued in a national court.4 This comment argues that regional courts can satisfy the statutory meaning of complementarity under the Rome Statute, serving as a form of regional complementarity.5

With regional complementarity, international justice has the potential to be more intersectional, effective, and balanced. The ICC can benefit regional courts and organizations through a more relational approach to the principle of complementarity, and regional courts have equal wisdom to offer the ICC. Using the concept of proactive regional complementarity to frame the relationship between the ICC and regional courts, this comment argues that a collaborative approach to complementarity could benefit both the ICC, regional courts, and international justice more broadly.

In Part II, I provide a brief background on the ICC and the meaning of complementarity within the Rome Statute and present various arguments under which regional courts can satisfy the statutory meaning of complementarity. In Part III, I frame the concept of proactive regional complementarity and the benefits this relationship can provide to both the ICC and regional organizations alike. In Part IV, I use the Inter-American Human Rights System as an example to explore the differences between international justice at the regional level and the international level, with a focus on the benefits of collaboration. For the purpose of this comment, the Inter-American Human Rights System includes both the Inter-American Court and the Inter-American Commission on Human Rights. Finally, I conclude by proposing a formal agreement for the ICC to share responsibilities through regional complementarity.

II. The ICC, the Rome Statute, and Principle of Complementarity

The ICC was created as a complementary court, which aims to “complement, not replace, national Courts.”6 This founding principle is highlighted in the Preamble of the Rome Statute and in Article 1.7 The principle of complementarity also guides the admissibility of cases facing the Court as outlined in Article 17 of the Rome Statute.8 Article 17 provides that a case is inadmissible where it is being:

[I]nvestigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution.9

A case is also inadmissible where a State with jurisdiction over it “has decided not to prosecute,” unless that decision results from unwillingness or inability.10 Finally, cases are inadmissible where the case is not of “sufficient gravity to justify further action.”11 Even beyond these provisions, Article 53 provides that the Prosecutor may decide to not initiate an investigation where there are “substantial reasons to believe that an investigation would not serve the interests of justice.”12 Given these bases for deciding to forgo an investigation or prosecution, the ICC Prosecutor has various options to defer to authorities besides the ICC.

Regional organizations, and particularly regional courts, can and should satisfy the requirements outlined under Article 17. There are various arguments to support this notion.

First, it has been argued that using a purposive approach to interpret the Rome Statute, considering the normative message that arises from the treaty text, the ICC is most fundamentally a court of “last resort” which maintains the primacy of state sovereignty.13 This approach provides that complementarity is meant to limit the involvement of the ICC and encourage states or regional groups of states to prosecute grave international crimes.14 Using this logic, regional courts should be respected as valid prosecutions under the principle of complementarity as long as they are genuine and effective. This approach requires regional courts and the ICC to be cooperative and provide mutual assistance as they would likely have potentially competing mandates.15

Another argument for regional complementarity arises from interpreting the Rome Statute in terms of Article 31 of the Vienna Convention on the Law of Treaties.16 This approach emphasizes interpretation in light of the object and purpose of the Rome Statute and similarly finds that complementarity is rooted in state sovereignty and a restrained role for the ICC as a “court of last resort.”17 Additionally, when criminal prosecutions reach a regional tribunal, states who are party to the tribunal typically delegate their national criminal jurisdiction to the regional tribunal.18 This type of delegation is permissible under international law and leads to the situation being genuinely investigated according to the wishes of a sovereign state.19 Using this logic, a valid prosecution by a regional tribunal should be upheld under the principle of complementarity.20

A potential difficulty in the principle of regional complementarity is that regional courts as they exist today are not empowered to prosecute individuals for international crimes, and this could conflict with the Rome Statute’s requirement of a genuine investigation or prosecution. However, the ICC has been heavily criticized for its Western emphasis on individual criminal punishment.21 Regional courts may not pursue individual prosecutions, but they have a multitude of other approaches to ensuring justice and accountability for the same grievous crimes.22 These courts primarily hear cases against states which violate human rights rather than individuals, but the benefits they reap are aligned with the goals of international justice and ending impunity for grave international crimes.23

Regional courts often focus more on policy, collaboration with civil society, and social movements in order to secure justice.24 The European Court of Human Rights has a broad range of remedies, including ordering damages and general measures to repeat recurrence of crimes such as building new detention centers and overseeing ethics commissions.25 The Inter-American Human Rights System influences domestic authorities to implement policies to account for grave international crimes and advance institutional reforms to prevent recurrence.26 These methods were even leveraged to advance national criminal prosecutions, state-sponsored truth commissions, and constitutional reforms.27

Complementarity is meant to respect the sovereignty of states who choose to carry out justice in their own systems. The value of regional courts is well-established, and in fact, it has been shown that these courts are more efficient in preventing and accounting for mass atrocities, given their budget, than the ICC.28 The ICC could benefit from a broader idea of what entails a genuine investigation or even a genuine form of justice for these grave crimes.29 Furthermore, this broader approach to accepted forms of genuine justice is permissible in the Rome Statute. Under Article 53, the Prosecutor could decide that an investigation or prosecution would not serve the interests of justice because there is already a genuine form of justice being reached through a regional court.30 There is no universal definition of what “justice” means in this context, and the ICC could benefit from a more diverse definition of international justice.31

In fact, in embracing a more comprehensive approach to complementarity, the ICC could provide space for longer-lasting, more effective forms of justice, and increase its own legitimacy in the process. Non-western, traditional, restorative, indigenous, and other justice mechanisms could be employed at various levels of international justice through a broader understanding of complementarity or in the interests of justice under Article 53.32 Trials are not the only solution to mass atrocities, and when the affected communities choose alternative justice mechanisms, whether in national courts or regional courts, the ICC should empower and encourage those communities to pursue justice in a way that is meaningful to them.33 The ICC’s limited approach to individual criminal prosecutions in the context of mass atrocities leaves many victims whose crimes are not prosecuted.34 By investing in local communities and allowing broader forms of justice to qualify as genuine justice mechanisms, the ICC could more adequately address the harms of all victims involved in crimes.

Finally, regional complementarity could also be ensured by amending the Rome Statute to explicitly include regional courts as part of the principle of complementarity. Kenya has proposed this method, but amendments to the Rome Statute are challenging and this outcome is unlikely.35

III. Framing Proactive Regional Complementarity

Literature has attempted to frame the principle of complementarity in a variety of ways from positive complementarity to radical complementarity to proactive complementarity.36 This comment combines aspects of Burke-White’s “proactive complementarity” and Sarah Nimigan’s conception of “regional complementarity” to frame a potential relationship between the ICC and regional courts.37

This proposed conception of regional complementarity emphasizes not only that regional courts can satisfy complementarity, but that the relationship should be based on cooperation at national, regional, and international levels.38 Mutual assistance between courts at all levels would build capacity for various institutions that can become stronger players in international justice. This will also alleviate some of the burden off of the ICC so that justice can be pursued in a broader range of forums, each with unique strengths. This is similar to proactive complementarity in that the ICC could participate more directly to encourage prosecution of international crimes, particularly through collaboration and mutual assistance, such as the exchange of evidence.39

A key component of this form of regional complementarity is its encouragement of a more fruitful distribution of prosecutorial roles. Nimigan suggests that ideally, national jurisdictions would investigate and prosecute foot soldiers, regional jurisdictions would pursue rebel leaders, military commanders or intermediaries, and the ICC would prosecute heads of state and government officials.40

There are a multitude of benefits to this distribution of power, foremost being a more holistic approach to criminal justice. There are jurisdictional benefits in that the ICC would primarily be tasked with heads of state and high-level officials, who don’t receive immunity at the ICC.41 Additionally, these roles serve the interests of capacity for these differing institutions, as the distribution of caseload would free up the ICC to focus on the most culpable. Meanwhile, regional and national courts could deal with larger caseloads of lower-profile cases.

This arrangement also serves the benefits of justice as national jurisdictions would focus on foot soldiers, who typically commit the most direct and localized forms of violence perpetrated against victims.42 The ability to gather evidence on the ground would be substantially easier for domestic jurisdictions, and victims would be able to face their perpetrators. This in turn would create greater prospects for transition and stability following mass atrocity.43 Spreading the potential avenues of justice could also help counter accusations of bias against the ICC.

This notion of complementarity is “more relational than vertical/hierarchical” as each judicial mechanism is interdependent and strengthens the other if effective coordination is implemented.44 International, regional, and national systems would share a commitment to cooperative international criminal justice rather than any having primacy over the other. This comment proposes that these roles can expand beyond the narrow definitions of investigation and prosecution and encompass more broad definitions of pursuing justice.45 As regional courts and organizations encompass a broader approach to ensuring international criminal justice than just individual prosecution, proactive regional complementarity should allow for different justice methods to serve the requirement of a genuine proceeding.

IV. The Inter-American Human Rights System

The Inter-American Human Rights System, encompassing both the Inter-American Court and the Inter-American Commission on Human Rights, provides a valuable example of the broader definitions of justice that could fit into proactive regional complementarity.

The Inter-American System has been described as quasi-criminal, as it holds states accountable for crimes despite not officially being a criminal court.46 The Inter-American Court is uniquely skilled at leveraging its competencies to advance state prosecutions.47 The Court also monitors states’ implementations of its orders through mandatory hearings and compliance reports.48 However, beyond these functions, the Inter-American Court also advances truth commissions, reparations programs, sites of historical memory, and various measures to facilitate truth-telling, accountability, and the prevention of mass atrocities.49

The Inter-American Commission for Human Rights is more deferential to states, but fosters local processes of justice.50 The rights body entrusts local justice systems with retributive justice, while also maintaining restorative justice and victim-centered remedies.51 In this way, the Inter-American Human Rights System presents a more cohesive approach to justice, with a greater emphasis on justice for victims and repairing the social fabric of communities following mass atrocities. The ICC could learn from this approach, as its focus on individual criminal responsibility does little to repair the damage done to entire communities in conflict zones.

The efficacy of this system is evidenced by the impacts of the Inter-American Court as compared to the ICC. Regional tribunals have been more effective than international criminal tribunals in securing accountability for mass atrocities.52 In fact, the sentences influenced by the Inter-American Court have been nearly as significant as the ICC, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda combined.53 Pursuant to Court decrees, states have:

[L]aunched new criminal investigations, exhumed mass graves, moved cases from military to civil jurisdiction, overturned amnesties, bypassed statutes of limitations, and created new institutions and working methods.54

This is particularly poignant, given that the ICC’s budget vastly exceeds those of all regional institutions, and the ICC cost about thirty-three times as much as the Inter-American Court between 2011 and 2018.55

Regional courts such as the Inter-American Court are partially more cost-effective because they are more closely connected to the surrounding states they serve.56 Local investigators and prosecutors may speak the necessary languages and understand the complex contexts of the surrounding communities’ culture, politics, and social fabric.57 This connection to the region accumulates less financial burden than the ICC faces in hiring experts, but it also creates a more accurate perception of how atrocities occurred given the particular unique contexts of the territory they occurred in. This also combats much of the criticism the ICC faces in imposing Western ideals of justice on societies with different approaches to criminal justice.

The ICC’s role in Colombia’s peace negotiations is evidence of the potential benefits of a broader, more collaborative approach to regional complementarity. The ICC kept the Court’s examination of Colombia in the preliminary investigation stage for years and regularly engaged in public and private peace talks with the Colombian government, judiciary, and civil society.58 This flexible, collaborative approach allowed the possibility of a peace agreement and potential criminal prosecutions in Colombian courts, even with the continuous participation of the ICC. The ICC closed its investigation and signed an agreement with Colombia to continue engaging through exchanging lessons learned and best practices, which is precisely in line with the mutual assistance found in regional complementarity.59

The Inter-American Court has been most effective in understanding its limitations and contributing to locally driven efforts.60 This institution was designed to complement national political and legal systems, with domestic actors being primarily responsible for preventing human rights violations.61 In a similar vein, the ICC would substantially benefit from recognizing its own limitations and delegating more substantially to regional efforts. The ICC was founded on the principle of complementarity, but in practice, it has not engaged in proactive complementarity to truly foster regional and national jurisdictions achieving justice on their own terms. Instead, the ICC has viewed itself as a primary agent of international justice.62 More intentional collaboration across varying institutions could achieve mutual benefits which inspire more effective, long-lasting international justice.

V. Conclusion

There is great potential in a more collaborative approach to proactive regional complementarity. In the interest of creating more formal cooperative relations, the ICC could negotiate and develop agreements between the Court and various regional organizations to share prosecutorial responsibilities in certain ways. With a broad interpretation of the acceptable forms of justice under the principle of complementarity, the Court could create a more just and effective distribution of responsibilities in approaching cases of grave international human rights violations. A formalized agreement would help achieve the ideal distribution of roles discussed earlier and facilitate concrete collaboration, such as through the provision of evidence from one justice mechanism to another. The potential for collaboration with parties outside of traditional justice mechanisms, from civil society to NGOs, would also be incredibly beneficial to the ICC and regional courts alike.

The field of international justice is complex and challenging, and the more the ICC is willing to recognize the unique skills and contexts of different players in the global system, the easier it will be for the Court to refocus its resources towards fulfilling its own mandate. When national, regional, and international institutions and actors each take responsibility for pursuing justice and fighting against global impunity, the field of international justice will continue to grow, with increasing intersectionality, and advance the protection of human rights around the world.

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

  1. 1.

    About the Court, ICC, available online (last visited Aug. 29, 2023).

  2. 2.

    Has the ICC Under-Represented Non-Western Legal Traditions?, ICC Forum (Jul. 25, 2022) [hereinafter Under-Represented Legal Traditions], available online; Is the ICC Targeting Africa Inappropriately?, ICC Forum (Mar. 17, 2013), available online.

  3. 3.

    About the Court, supra note 1.

  4. 4.

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

  5. 5.

    Sarah P. Nimigan, The Malabo Protocol, the ICC, and the Idea of “Regional Complementarity”, 17 J. Int’l Crim. Just. 1005 (Nov. 5, 2019), paywall, earlier version, doi.

  6. 6.

    About the Court, supra note 1.

  7. 7.

    Rome Statute, supra note 4, at Art. 1.

  8. 8.

    Id. Art. 17.

  9. 9.

    Id.

  10. 10.

    Id.

  11. 11.

    Id.

  12. 12.

    Id. Art. 53.

  13. 13.

    Nimigan, supra note 5, at 1020.

  14. 14.

    Id.

  15. 15.

    Id. at 1022.

  16. 16.

    Miles Jackson, Regional Complementarity: Rome Statute and Public International Law, 14 J. Int’l Crim. Just. 1061 (Dec. 17, 2016), available online, doi; Vienna Convention on the Law of Treaties, Art. 31, May 23, 1969, 1155 U.N.T.S. 331, available online, archived.

  17. 17.

    Jackson, supra note 16.

  18. 18.

    Id.

  19. 19.

    Id. at 1066.

  20. 20.

    Id.

  21. 21.

    Under-Represented Legal Traditions, supra note 2.

  22. 22.

    James L. Cavallaro & Jamie O’Connell, The ICC’s Best Bet: Look to Regional Systems, ICC Forum (Jul. 25, 2022), available online.

  23. 23.

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

  24. 24.

    Cavallaro & O’Connell, supra note 22.

  25. 25.

    Cavallaro & O’Connell, supra note 23, at 32.

  26. 26.

    Id.

  27. 27.

    Id.

  28. 28.

    Cavallaro & O’Connell, supra note 22.

  29. 29.

    Darryl Robinson, Serving the Interests of Justice: Amnesties, Truth Commissions, and the International Criminal Court, 14 EJIL 481 (2003), available online.

  30. 30.

    Rome Statute, supra note 4, at Art. 53.

  31. 31.

    Ray Nickson, By Recognizing Broader, Deeper, and Longer Conceptions of Justice Through Complementarity, the ICC Can Transcend a Narrow, Western Approach to International Criminal Justice, ICC Forum (Jul. 25, 2022), available online.

  32. 32.

    Id.

  33. 33.

    Id.

  34. 34.

    Id.

  35. 35.

    African Union, Withdrawal Strategy Document, Draft 2 (Jan. 12, 2017), available online.

  36. 36.

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

  37. 37.

    Id.; Nimigan, supra note 5.

  38. 38.

    Nimigan, supra note 5.

  39. 39.

    Burke-White, supra note 36.

  40. 40.

    Nimigan, supra note 5, at 1022.

  41. 41.

    Rome Statute, supra note 4, at Art. 27.

  42. 42.

    Nimigan, supra note 5, at 1022.

  43. 43.

    Id.

  44. 44.

    Id. at 1026.

  45. 45.

    Nickson, supra note 31.

  46. 46.

    Alexandra Valeria Huneeus, International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human Rights Courts, 107 Am. J. Int’l L. 1 (Jan. 9, 2013), available online.

  47. 47.

    Id.

  48. 48.

    Id.

  49. 49.

    Cavallaro & O’Connell, supra note 22.

  50. 50.

    Huneeus, supra note 46, at 4.

  51. 51.

    Id.

  52. 52.

    Cavallaro & O’Connell, supra note 23.

  53. 53.

    Id. at 46.

  54. 54.

    Huneeus, supra note 46, at 3.

  55. 55.

    Cavallaro & O’Connell, supra note 23, at 59.

  56. 56.

    Id. at 61.

  57. 57.

    Id.

  58. 58.

    Cavallaro & O’Connell, supra note 22.

  59. 59.

    Id.; Cooperation Agreement Between the Office of the Prosecutor of the International Criminal Court and the Government of Colombia, Art. 4 (Oct. 28, 2021), available online.

  60. 60.

    Cavallaro & O’Connell, supra note 23, at 58.

  61. 61.

    Id.

  62. 62.

    Id. at 61.

How Can the International Criminal Court Help National Courts Implement Universal Jurisdiction: Potential Applications and Pitfalls Arising from the Article 93 Cooperation

I. Introduction

In recent years, there has been renewed interest in countries exercising universal jurisdiction, i.e., the prosecution of foreign nationals for serious crimes unrelated to the prosecuting nation other than their offensiveness or threat to mankind generally.1 The logic underlying universal jurisdiction is that certain grievous crimes are such an afront to humanity and internationally accepted pre-entry norms that theoretically all nations have simultaneous jurisdiction to prosecute perpetrators of such conduct.2 The International Criminal Court (ICC or the Court) was established in large part, if not specifically, to prosecute this same serious criminal conduct, as defined under the Rome Statute.3 These Article 5 crimes consist of the crime of genocide, crimes against humanity, war crimes, and the crime of aggression (Article 5 Crimes).4 It is debatable whether the Rome Statute itself employs universal jurisdiction,5 as the Preamble of the Rome Statute implies,6 or whether its jurisdiction more conventionally arises from delegated jurisdiction7 created through treaty-making between States.

Aside from dogmatic and jurisdictional concerns, there are numerous practical challenges that have stymied the prosecutions of crimes that fall under universal jurisdiction, both at the ICC and in national courts.8 These challenges involve difficulty in obtaining reliable evidence and witnesses, overcoming diplomatic immunities and joinder issues,9 and issues surrounding trial in absentia when extradition remains elusive,10 among others.11 Most national prosecutors lack the experience and expertise to navigate these issues well as Article 5 Crimes are both inherently complex, and almost by definition, exceedingly rare.

The ICC is broadly authorized under Article 93 to cooperate with State Parties and non-State Parties to help overcome many of these challenges.12 Some forms of cooperation are explicitly given, namely regarding the transfer of evidence upon request by a State; but more significantly, the Rome Statute offers these cooperation mechanisms inter alia.13 Thus, the Statute leaves the door open for an expansive range of supportive cooperation. Such support could range from providing national courts technical advisory to current and former ICC attorneys trying matters in national courts pro hac vice.14 Such a partnership might violate a State’s domestic law, especially where prosecutors are part of the judiciary or explicitly represent the public interest. Additionally, issues could arise surrounding prosecutorial accountability where ICC-trained attorneys are not citizens of the nation where the universal jurisdiction proceedings are occurring. This risk could be mitigated by assigning ICC attorneys that are citizens of States with universal jurisdiction laws to cases from the same requesting State.

Another avenue of cooperation would be a formal training program where States that are interested in bolstering their ability to investigate and prosecute crimes similar Article 5 Crimes, send their staff to the Hague for formal training, similar to an LL.M. or clerkship. Finally, the ICC could provide advisory observations, similar to amicus briefs, to national courts during criminal proceedings, essentially serving as expert witnesses and lending their skills in a persuasive authority. In the long run, this could help build new national case law, with judges adopting ICC originated arguments and analysis in their decisions. However, all of these suggestions for means of cooperation carry a financial cost, and the ICC has a limited budget. Thus, they may prove more aspirational than practical.

II. Source of ICC Authority to Assist in National Courts: A Risky, Complex Endeavor

Aside from doctrinal and political objections to universal jurisdiction being applied in national courts, there are also significant practical barriers. The ICC is authorized to help overcome these barriers through the provision of “Other forms of cooperation.”15

As stated in the Rome Statute:

The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.16

This provision grants the ICC the right to assist State Parties, i.e., signatories to the Treaty, in their investigation or trial of the four defined Article 5 Crimes, as well as other serious crimes defined under a States’ national law. The vagueness of the latter portion of this sentence appears to be a broad authorization as to which types of crimes it may aid with. It also appears to defer to the requesting State to determine what constitutes a serious crime. Presumably where a States’ national law extends to foreigners under a universal jurisdiction doctrine, this threshold would be met and the ICC would be authorized to assist. However, this also begs the question of whether the Court would agree to aid in other infractions not contained in the Rome Statute, such as drug trafficking, which some signatories likely view as being overly prosecuted or even discriminatory. For instance, assisting in the investigation and trial of narcotics traffickers in the United States by U.S. national prosecutors may be viewed detrimentally by ICC-funding States in Europe who are opposed to U.S. drug policy on abolitionist grounds, or State Parties in Latin America who feel their nationals are disproportionately targeted.

Also, would the Office of the Prosecutor (OTP) or another organ of the Court have the authority to determine whether a crime is serious or unserious and thus worthy of cooperation? Or would this determination truly be left to the requesting State as the Statute seems to assert? The OTP is just one of the five organs of the Court.17 Per Article 42(1), the Rome Statute asserts:

[The Prosecutor] shall act independently as a separate organ of the Court. [… and …] [It] shall be responsible for […] conducting investigations. […] The Prosecutor shall have full authority over the management and administration of the Office, including […] the resources thereof.18

When the Rome Statute refers to The Court throughout Article 93, it is unclear where the decision-making authority to cooperate or not cooperate rests, i.e., does the decision to share evidence or provide other assistance during a State’s national trial belong to the Presidency, the OTP, Chambers, or even the Registry? Given the political backlash cooperating may lead to, how this cooperative power is wielded is important.

If dissemination of evidence is considered a “non-judicial aspect of the administration and servicing of the Court”19 it would seem the responsibility to share evidence belongs to the Registry. Yet, according to Article 42, the OTP has full authority to manage and administer its resources and is intended to operate independently. Is evidence a resource of the OTP’s office? If so, the power should rest with it to independently determine its best use. The time and expense of the OTP’s staff seem even more squarely within this reading. Conversely, the Presidency given its “role in representing the Court to the outside world,” also seems to have a viable claim to speak for the Court on this issue.20 International cooperation would seem to fit into this representative, almost diplomatic, quasi-foreign policy-esq capacity. Finally, the discretionary may21 preceding the entire provision of cooperation implies that this is a decision which should be left to the Pre-Trial Chambers, whose “role is essentially to supervise how the OTP carriers out its investigatory and prosecutorial activities”22 according to the ICC in Understanding the Court.23

Given the historical practice of the OTP as leading the direction of the Court, along with its mandate to act independently on matters of investigation, I suspect the Prosecutor will have an outsized role in handling and deciding when and how to cooperate (even though the law is ambiguous on this). According to the ICC, it is in fact the OTP that has the responsibility. Part of the OTP is The Jurisdiction, Complementarity, and Cooperation Division, one of the four divisions that make up the OTP.24 In order to implement active participation in national court prosecutions, it would be advisable to increase the staffing of this division, which currently has approximately twelve employees, who are primarily former diplomats rather than lawyers. Shifting resources from two-hundred attorney strong Prosecution Division, or one-hundred employee Investigative Division, is one route to accomplish this. However, doing so would likely lead to less prosecutions at the ICC. This is a pragmatic reality that the OTP surely will contemplate. In the long run, the capacity building that this may lead to in national courts should have a force-multiplier effect, thus expanding the pie and encouraging less of a zero-sum calculation.

Some of this confusion is attributable to the mixed, international nature of the Treaty, which was drafted and negotiated by many countries (including the United States, even though it is not a signatory). These stakeholders came from mix of civil and common law traditions, which take differing views on the separation of prosecutors and judges.25 My focus on this may just as well be overblown, coming from a federalist system that strongly emphasizes delegated powers, and forgetting that the ICC is not itself a federated, sovereign state.26 Regardless, the decision to cooperate or not cooperate seems like an opportunity ripe to become politicized, whether it is at the hands of prosecutorial discretion or judicial decision. For instance, while the United States is not a State Party, under the Rome Statute it also has the right request for cooperation, which the Court may or may not agree to provide.

As stated in Article 93(10)(c), the ICC generously expands the offer of investigatory and trial assistance to non-signatories:

The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.27

It is conceivable that the United States may seek evidence collected by the OTP for use in domestic prosecutions of arms traffickers, terrorists, or drug smugglers, among others. Given that the United States has at times had a very hostile relationship with the ICC, to the point of sanctioning the entity and its personnel, would it be expected that the OTP or other organ of the Court share evidence? According to the discretionary may in Article 93, it is fully within the Court’s prerogative to decide to cooperate with such a request, for ostensibly whatever reason it sees fit. The potential for politicization of such cooperation may lead to an unfair application of justice, where a national court’s access to ICC gathered evidence, or trial assistance, depends on the requesting State’s present relationship with the Court (or the OTP in particular). Such an outcome could prejudice the rights of victims, who might be denied justice due to the forces greatly beyond.

For instance, if a perpetrator of genocide resided in the territory of a non-State Party and that country had the jurisdiction and desire to prosecute but lacked evidence in the ICC’s possession necessary to obtain a conviction, that perpetrator could go unpunished but-for the ICC’s cooperation.28 If that cooperation depended on politics or other biases against that national court, this would go against the object and purpose of the Treaty to “put an end to impunity for perpetrators of these [most serious] crimes”29 and would be against the interests of justice30 generally.

Conversely, Article 93 seems to prejudice the rights of the accused by specifying that the requestor must be a State Party31 or other “State which is not a Party to this Statute.”32 This explicitly prohibit individuals or non-state organizations from making such a request. For instance, if an accused individual believes the Court is in possession of exculpatory evidence, Article 93 provides no route of evidence sharing, other than a formal request by a State. Thus, for a defendant in a national court proceeding to obtain such evidence, he or she would be required to petition the national government that is bringing the case against them, or potentially a third-party State, to submit a request on their behalf to the ICC. Article 96 gives precise—and potentially onerous—rules that this request must follow.33 This is an additional procedural barrier which prejudices the accused when being tried in a national court setting, and which seems to go against the rights of the accused enshrined including the right to a “fair hearing conducted impartially…in full equality.”34 While these rights are intended to accrue to the accused during a trial before the ICC, that they would not be respected when the ICC has used its discretionary authority and semi-sovereign resources to gather evidence, especially when that evidence may be exculpatory, seems to be an affront to the generally accepted principle of prompt dissemination of exculpatory evidence and not in the interest of justice.

This principle is codified in Article 67(2):

[T]the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.35

Where the Prosecutor seeks and fails to prosecute a perpetrator at the ICC, is he or she likely to volunteer such exculpatory evidence during a trial before a national court, especially when there is no express obligation to so?

It seems reasonable that jurisdictional complexities and the limited resources of the OTP may serve as convincing excuses for the Prosecutor failing to disclose exculpatory evidence during a national proceeding, resulting in injustice based on personal or institutional bias. Or to disclose in a manner that is consistent with the Prosecutor’s current relationship with the State in which a universal jurisdiction prosecution is being held, resulting in injustice based on political bias. As such, Article 93’s version of one-sided cooperation is biased against the defense of the accused in a national prosecution.36 This is in line with arguments put forward by many scholars that prosecutors in general, and the ICC’s Prosecutor in particular, have an imbalance of power due to the State’s greater resources and influence.37 To avoid these biases, the OTP should develop an apolitical evidence sharing system that is equally accessible to State prosecutors as well as defendants.

The ICC’s online digital archive, accessible to anyone who registers, seek to accomplish. However, in practice the vast sums of data contained within it are hard to navigate and there is a high likelihood that evidence that would be useful in a national investigation or trial may be missed, by either side. Improving the search functions of this archive and mandating that the OTP update it with exculpatory evidence as it is discovered, even after the Court has determined it will not proceed with a trial, would help to ensure prosecutorial bias does not hurt justice in national courts. Similarly, increasing the searchability of the data will make national investigations more efficient. This could be achieved through trainings, led by the OTP or the Registry, with prosecutors and investigators in States that practice universal jurisdiction.

III. Extent of Authorization to Cooperate: More Comments on Evidence

The scope of cooperation is also exceptionally broad under Article 93. The assistance which the Court may be provide to States is defined as being provided, inter alia.38 The use of inter alia, or “among others”, gives the OTP broad authorization to help requesting States in nearly anyway it sees fit, with some minor caveats. One of these caveats, found in Article 93(10)(b)(i)(a), demands that before providing a requestor evidence that the ICC procured with the assistance of a State, it must obtain that State’s consent.39 For example, if a State’s national police gathered evidence against an accused through a wiretap that it then provided to the ICC, the ICC must get the State’s consent before sharing the tapes with the requesting third party State. Generally, the ICC collects evidence independently, i.e., it is rarely relies on the State to help it collect physical evidence. As such, this caveat does not come up often in practice. Were the Court to more frequently investigate matters in developed countries, it is likely that State assistance in investigations would be more commonplace, as a result of increased State capabilities and more democratic political landscapes, which may lead to this caveat being triggered more frequently. The Court has shown interest in handling a more diverse range of cases, including against American officials, which have also been taken up by national courts on universal jurisdiction grounds.40 As such, it is conceivable that requests for evidence that was provided to the ICC by States will increase over time. For example, if an Eastern European State provided the ICC with evidence regarding a U.S. black site prison operating in its territory, and then France requested access to the same evidence for use in a domestic prosecution of U.S. officials under a universal jurisdiction doctrine, the Eastern European State’s consent would be required under Article 93. Political pressure may strongly influence whether such a State grants this consent, especially if the government that initially provided the evidence to the ICC has changed, or if its government’s relations with the United States have deteriorated. A solution for this may be that the OTP seeks irrevocable consent for future dissemination of such evidence upon the receipt of it, in the event that it is requested for use by a third-party national prosecution of the same or similar crimes for which it it was provided to the ICC. This seems like a viable contractual work around to obligate the provider and insure against politically motivated changes of heart.

Additionally, the Rome Statute explicitly makes no assurances on the relevance or admissibility of evidence collected by a State on that evidence’s admissibility in the State’s national courts.41 Ostensibly, the same consideration would apply to the relevance or admissibility of evidence in other States’ national courts. However, that is not what the Rome Statute says. That is left up to national courts to determine, likely due to sovereignty concerns. This provides the OTP an opportunity to help other national courts pursuing universal jurisdiction prosecutions. Firstly, it could seek formal decisions from Chambers on the credibility of evidence, which may carry persuasive, or even binding authority in national courts, depending on the national law.42 Secondly, OTP personnel could serve as expert witnesses themselves in universal jurisdiction trials conducted in third-party national courts, something that is not explicitly prohibited in the Rome Statute. While they would not have official authority, and may not even be testifying in their capacity of an ICC employee, given their extensive training and experience in the area, they would be uniquely qualified to opine on the credibility of evidence collected in war zones and post-genocide societies. Through expert witness work as well as the Courts own decisions, the ICC has potential to help set global standards such evidence. The OTP can promote this further by pushing the Court to give detailed analysis in their decisions, for the standards used to determine credibility and admissibility, and encourage it to rule on the credibility of evidence that might otherwise be seen as superfluous for the case at hand, but which may have significant value to future prosecutions in other courts.

IV. Other Opportunities for the ICC to Help in Capacity Building at the National Level

Where there is the greatest potential for the OTP to help national courts be more effective in is through capacity building. Article 93 gives the ICC broad authorization to help States investigate, and even assist in trial of, Article 5 Crimes and other serious crimes.43 Given the rarity of prosecuting crimes brought under the universal jurisdiction doctrine, namely Genocide, War Crimes, and Crimes Against Humanity, the OTP likely has more experience litigating such matters than the vast majority of national prosecutors. As such, the OTP is in a unique position to help national courts develop capacity to handle these matters. Firstly, the OTP allow the Prosecutor and Deputy Prosecutor, as well as the other attorneys in the OTP, to petition national courts to serve pro hac vice or in other, hands-on direct capacities during universal jurisdiction cases. Second, the OTP should develop a department specialized in drafting amicus briefs for use in national proceedings, summarizing their take on the issues presented. Third, the OTP should develop a program where it trains national prosecutors on how to build and litigate Article 5 Crimes. By using these capacity building methods, the Court could encourage the domestic prosecution of Article 5 Crimes, promoting the principle of complementarity, while supporting also national courts that are pursuit of universal jurisdiction.

A. Providing ICC Prosecutorial Staff to National Courts

The OTP could become a more effective partner to national governments’ prosecutions by loaning its prosecutors to requesting States investigating and prosecuting serious crimes that the OTP has unique expertise in handling. Genocide, war crimes, and crimes against humanity are inherently complex. The investigation and prosecution of these crimes require collecting evidence in active or former warzones where witnesses are vulnerable, physical evidence is hard to preserve, and where a variety of complex legal doctrines collide. From persuading a court to accept the State’s position on gravity or disproportionality, to helping investigators dissect the culpability of former child soldiers in the recruitment of new child soldiers, the range of issues presented when prosecuting such atrocities requires a high degree of specialization. Given the infrequence of such crimes, and their prosecutions, few domestic prosecutors’ offices are equipt to adequately handle these matters as proficiently as the OTP. Thus, the OTP should make their personnel available to help national courts navigate these issues directly, by actively helping prosecutors try cases, in a pro hac vice capacity,44 or simply by consulting with prosecutors and investigators as they prepare for trial on a particular matter.

If the ICC were to take a more proactive role in deploying its current and former prosecutorial staff to practice in national courts, the ICC could develop into what it was intended to be—a court of last resort. While such representations would require the national law to allow for this, it is reasonable that nations which have warmed to universal jurisdiction, will also be amendable to this. Similarly, developing nations interested in increasing their overall prosecutorial acumen and signaling their compliance with human rights would also likely accept.

However, this could also be viewed by defendants and the public as giving the State an unfair upper hand in prosecutions and an unreasonable allocation of State police power to a non-citizen. In some jurisdictions, prosecutors are themselves technically part of the judiciary with enhanced legal protections and status, such as in France and Italy,45 raising further concerns over accountability and sovereignty. Where a noncitizen is handling a prosecution, the ability of the State and the public to hold them accountable for misconduct also may arise. These issues could be avoided by matching OTP personnel to Article 93 requests, based on their citizenship and where they are already authorized to practice. The goal of these joint representations would be to ensure the highest caliber of legal services are brought bear on serious matters and to give national prosecutors hands on training and mentorship. As previously discussed, this would also involve a reduction in staff available for ICC investigations and prosecutions.

B. OTP Drafted Amicus Briefs

Second, the OTP and other organs of the Court could issue amicus briefs or other declaratory statements on general international criminal law standards and on particular active matters, at the request of a State. Such observatory documents could prove to be useful in helping inexperienced prosecutors and judges analyze issues which the ICC has extensive experience dissecting. For the reasoned discussed earlier, this may lead to unfair outcomes given that only the State can make such requests. Additionally, both this and the prior suggestion may conflict with the Prosecutor and Deputy Prosecutor’s obligation not to engage in activities that interfere with their duties or affect confidence in their independence.46 The OTP’s Legal Advisory Section would likely have to opine on whether these suggestions go beyond what the Rome Statute authorizes. Over involvement in national court prosecutions, even through persuasive authority, may be construed as overly interventionist. Such a characterization could lead to further resistance to the ICC from the United States, Russia, China, and other global powers, which could lead to cut funding and encourage their allies to withdrawal. Nonetheless, if done legitimately, such persuasive briefings could be of great value. They could help States’ local prosecutors develop stronger arguments and help domestic courts adopt better reasoning in their published decisions, potentially leading to more robust, globally standardized precedents.

C. OTP Sponsored Formal Training Program and Specialization for National Prosecutors

Third, the OTP should institute a formal training program for prosecutors from States with universal jurisdiction laws or a need to develop skills to prosecute serious domestic crimes. Such a programs could consist of an apprenticeship or clerking program where national prosecutors work under seasoned OTP attorneys directly at the Hague, a specialization process for national prosecutors accredited by the ICC or ran directly by the OTP, as well as classroom-based training programs. This would encourage complementarity, through capacity building, and the application of universal jurisdiction. Additionally, it would fit well within the object and purpose of the Rome Statute to promote effective prosecution at the national level in order to enhance international cooperation and ensure an end to impunity for perpetrators of atrocities.47

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

  1. 1.

    Human Rights Watch, Basic Facts on Universal Jurisdiction (Oct. 19, 2009), available online.

  2. 2.

    Id.

  3. 3.

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

  4. 4.

    Id. Art. 5

    (noting, however, its ability to adjudicate the crime of aggression remains theoretical).

  5. 5.

    Monique Cormier, Universality as a Legal Basis for ICC Jurisdiction, in The Jurisdiction of the International Criminal Court over Nationals of Non-States Parties 159 (Aug. 6, 2020), paywall, doi

    (discussing the validity of universal jurisdiction as an acceptable basis for the Court’s authority but ultimately concluding that there is no advantage to characterizing the ICC’s authority as arising from any universality model rather than treaty created, delegated jurisdiction).

  6. 6.

    Rome Statute, supra note 3, at Preamble.

  7. 7.

    International Criminal Court, Understanding the International Criminal Court 11 (2020) [hereinafter Understanding the ICC], available online.

  8. 8.

    See generally, Valérie Paulet, Trial International, Evidentiary Challenges in Universal Jurisdiction Cases (2019), available online.

  9. 9.

    See Mohamed Ali Samantar v. Bashe Abdi Yousuf et al., 560 U.S. 305 (Jun. 1, 2010), available online.

    (In this case the United States Supreme Court dismissed an Alien Tort Act claim involving a high-ranking former Somalian official accused of torture, reasoning that even after overcoming the petitioner’s immunity defense on jus cogens grounds, it would be impossible for the accused to mount a fair defense without joining the government of Somalia and its current head of state—who would be entitled to sovereign immunity. While this case pertained to a civil matter brought in the United States—a nation that is generally averse universal jurisdiction—it highlights the procedural complexity that can arise when national courts seek to apply universal jurisdiction in criminal matters).

  10. 10.

    Sudan Says Will “Hand Over” al-Bashir to ICC for War Crimes Trial, Al Jazeera, Aug. 12, 2021, available online.

    (This has been a major issue facing the ICC, where they simply cannot prosecute due to failing to secure the extradition of an accused. For example, former Sudanese President Omar al-Bashir has been under ICC indictment for over twelve years for genocide and other Article 5 Crimes. As of this writing, the ICC has failed to secure his extradition to the Hague for prosecution. This is despite an agreement with the country’s new leadership and rebels, following a coup d’état, to ratify the Rome Statute and hand over al-Bashir. He remains imprisoned locally on comparatively minor corruption charges).

  11. 11.

    See also, Christopher Keith Hall, Amnesty Int’l, Universal Jurisdiction: The Challenges for Police and Prosecuting Authorities 11–17 (Jun. 2007), available online.

  12. 12.

    Rome Statute, supra note 3, at Art. 93(10).

  13. 13.

    Id.

  14. 14.

    Definition of Pro hac vice, Wex, available online (last visited Aug. 29, 2023).

  15. 15.

    Rome Statute, supra note 3, at Art. 93(10).

  16. 16.

    Id.

  17. 17.

    Id. Art. 34.

  18. 18.

    Id. Art. 42(1).

  19. 19.

    Id. Art. 43.

  20. 20.

    Understanding the ICC, supra note 7, at 17.

  21. 21.

    Rome Statute, supra note 3, at Art. 93(10).

  22. 22.

    Understanding the ICC, supra note 7, at 20.

  23. 23.

    Id. at 9.

  24. 24.

    Id. at 21.

  25. 25.

    In civil law jurisdictions, the prosecutor is more of an organ of the court, often working hand-in-hand with the judge to make the State’s case. In contrast, in common law jurisdictions, which are typically more adversarial, the judge is supposed to be a neutral referee. The insistence on the OTP being an independent organ that wields large powers, yet is not serving in a judicial capacity, may stem from the compromises that went into drafting the Rome Statute.

  26. 26.

    Though some, including former Prosecutor Luis Moreno-Ocampo, regard the ICC as a confederation of sorts.

  27. 27.

    Rome Statute, supra note 3, at Art. 93.

  28. 28.

    Id.

    (Similarly, if a perpetrator resided in the territory of a State Party and the ICC was unable to compel extradition, the same analysis would apply).

  29. 29.

    Id. at Preamble ¶¶ 5–6.

  30. 30.

    See id. Art. 53(1)(c), Art. 53(2)(c).

    (This theme is woven throughout the Rome Statute, in particular around indictment and issues of prosecutorial discretion where it serves as the standard against which the OTP is supposed to weigh whether or not to bring a case).

  31. 31.

    Id. Art. 93(10)(a).

  32. 32.

    Id. Art. 93(10)(c) (emphasis added).

  33. 33.

    Id. Art. 96.

  34. 34.

    Id. Art. 67(1).

  35. 35.

    Id. Art. 67(2).

  36. 36.

    This is especially true in an adversarial system of law, such as in the United States or United Kingdom, comparatively to France and other jurisdictions that follow inquisitional systems of law. As prosecutors in adversarial jurisdictions are often incentivized to achieve justice by any means necessary including taking advantage of procedural advantages that allow for the suppression of inadmissible evidence.

  37. 37.

    Hall, supra note 11, at 17

    (discussing that this is especially relevant when evidence is sourced from transitional governments).

  38. 38.

    Rome Statute, supra note 3, at Art. 93(10).

  39. 39.

    Id. Art. 93(10)(b).

  40. 40.

    See Universal Jurisdiction: Accountability for U.S. Torture, CCR (Sep. 8, 2021), available online (last visited Aug. 29, 2023).

  41. 41.

    Rome Statute, supra note 3, at Art. 69(8).

  42. 42.

    Some States, such as South Africa, explicitly incorporate international law into their body of law.

  43. 43.

    Id. Art. 93(10)(a).

  44. 44.

    Jenia Iontcheva Turner, Transnational Networks and International Criminal Justice, 105 Mich. L. Rev. 985, 987–88 (Mar. 2007), available online

    (advocating for supranational prosecutors to help overcome the “globalization paradox”).

  45. 45.

    Scott Beazley, Nicholas Cowdery & Pierre Rosario Domingue, The Status and Role of Prosecutors, UNODC (Nov. 2014), available online.

  46. 46.

    Rome Statute, supra note 3, at Art. 42(5).

  47. 47.

    Id. at Preamble.

I. Introduction

The principle of complementarity is a cornerstone of the Rome Statute and the International Criminal Court (ICC). Under this design, the ICC will only intervene in “exceptional” circumstances where states fail to investigate and prosecute international crimes.1 Since its inception, the ICC has opened investigations in nine African States.2 A number of scholarly works suggest that African regional courts can promote complementarity by directly prosecuting individuals who commit grave international crimes. However, there is not currently an operational African regional court with the jurisdiction or capacity to prosecute individuals.

In this comment, I assess how the judicial organs of the African Union (AU) can promote complementarity in Africa outside of hearing individual cases. In Section II, I begin by providing a brief background on the ICC’s jurisdiction and the principle of positive complementarity. Then, in Section III, I present an overview of the AU’s judicial organs. Next, in Section IV, I suggest that the AU’s judicial organs can meaningfully promote positive complementarity through Fact-finding Missions and Evidence-gathering, Support for National Legislative and Judicial Efforts, and Developing Procedures and Jurisprudence that Reinforce Long-Term Domestic Efforts to Advance Human Rights. Finally, I discuss some of the practical challenges the AU might face in implementing the strategies above.

II. Scope of ICC Prosecutions and the Principle of Positive Complementarity

The ICC was established as a mechanism to hold individuals (rather than States) accountable for the most serious international crimes.3 Under the Rome Statute, the ICC’s jurisdiction is limited to four crimes: (a) genocide; (b) crimes against humanity; (c) war crimes; and (d) the crime of aggression.4 The ICC’s jurisdiction is further limited by the principle of complementarity which places the primary responsibility for investigating, prosecuting, and punishing crimes with national courts.5 Under this framework, the ICC may only admit cases when States with jurisdiction are unwilling or unable to genuinely investigate and prosecute mass atrocities themselves.6 The ICC may determine that a State is unwilling or unable to carry out genuine proceedings when they are not conducted impartially, are unjustifiably delayed, are undertaken to shield a person from criminal responsibility in another forum, or when a national judicial system is unavailable or has substantially collapsed.7 Adopting a positive approach to complementarity, the ICC seeks to promote national proceedings where possible by providing information to national judiciaries, calling upon officials to investigate, and supporting development organizations.8 Below I argue that the AU’s judicial organs could adopt a similar, positive approach to complementarity to support national proceedings.

III. Structure and Jurisdiction of the AU’s Judicial Organs

To effectively assess how the AU’s judicial organs can promote complementarity, I first examine the jurisdiction, powers, and operationality of these organs to determine what strategies they can feasibly implement. While a number of different judicial organs have been developed and proposed by the AU Assembly, only two are operational today: the African Commission on Human and Peoples’ Rights (ACHPR); and The African Court of Human and Peoples’ Rights (ACtHPR). In 1986, the Organization of African Unity, the predecessor of the AU, passed the African Charter on Human and Peoples’ Rights (the Charter) creating the first African continental quasi-judicial body—the ACHPR.9 The Charter is the first human rights protection mechanism in Africa and remains in force today.10 The ACHPR is an instrument of human rights law and its mandate includes interpretating the Charter, as well as the promotion and protection of human and peoples’ rights.11 Under the promotional mandate, the commission is responsible for researching and investigating African problems in the field of human rights and hosting seminars, symposia, and conferences to disseminate this information.12 Under the protective mandate, the commission hears complaints about State violations of human rights submitted by individuals, State parties, and NGOs, and issues recommendations.13 Significantly, while the ACHPR conducts legal investigations and analyses, it does not have any binding legal authority.14

In 2000, the Constitutive Act of 2000 formally established the AU.15 The act provided for two judicial orgrans, the ACHPR and the Court of Justice of the African Union (CJAU).16 The ACHPR continued to perform its quasi-judicial functions while the CJAU was never operationalized.17 Recognizing the need for a human rights court with binding legal authority, in 2004, the AU amended the Charter to create the ACtHPR.18 The ACtHPR complements the ACHPR’s protective mandate by hearing complaints about State actions that threaten human rights and issuing binding legal decisions. The ACtHPR has jurisdiction over all cases and disputes concerning the Charter, and any relevant human rights law enacted or ratified by member States.19 Importantly, because both the ACHPR and ACtHPR only examine whether States have committed human rights abuses, they do not engage in individual criminal prosecution.20

Since 2004, two significant changes to the structure and powers of AU’s judicial organs were proposed but not ratified. First, in 2008, the AU adopted the Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR) which merged the ACtHPR with the non-operational CJAU to create the ACJHR.21 The merger was motivated by a desire to centralize and streamline the AU’s judicial operations through the creation of a single court.22 However, because only eight AU member States have ratified the Protocol, the merger has not officially occurred and the ACJHR has not been operationalized.23

Second, throughout the early 2000s, a number of AU member States identified the need for a regional court with jurisdiction to criminally prosecute individuals for the grave international crimes in the Rome Statute.24 This may have been motivated in part by the regional movement to pull out of the ICC amid accusations that the court was unfairly targeting African States.25 In 2014, AU member States drafted the Protocol on Amendments to the Protocol on the Statute of the ACJHR (Malabo Protocol) to empower the ACJHR to prosecute individuals for international crimes including genocide, crimes against humanity, war crimes, the crime of aggression, terrorism and more.26 The Malabo Protocol would, in theory, promote complementarity by empowering the ACJHR to prosecute African individuals for international crimes locally (rather than referring these cases to the ICC) when national jurisdictions are unwilling or unable to do so. However, to date, only fifteen AU member States have signed the Malabo Protocol, and none have ratified it.27 Given that neither the Protocol on the Statute of the ACJHR nor the Malabo Protocol have been ratified, it is unlikely that the AU will have an operational regional court with the authority to prosecute individuals in the near future. Thus, the AU’s only operational judicial organs, the ACHPR and ACtHPR, must work within their mandates to promote complementarity in Africa without trying individual cases.

IV. How the AU and its Judicial Organs Can Promote Positive Complementarity

The ACHPR and ACtHPR’s current mandates can be utilized to advance positive complementarity. As organs of human rights law, the ACHPR and ACtHPR undoubtedly have different purposes than the ICC or domestic criminal institutions. However, international human rights law and international criminal law share the common goal of deterring and ending impunity for mass atrocities and serious violations of human rights.28 As Pacifique Manirakiza explains:

[T]he creation of international and internationalized criminal courts relevant to Africa have contributed to protect and uphold human rights enshrined in the African Charter on Human and Peoples’ Rights (African Charter) and other human rights treaties relevant to Africa.29

Recognizing the interconnectedness of international criminal and human rights law, the ACHPR and ACtHPR can work within their human rights-based mandates to promote complementarity through Fact-finding Missions and Evidence-gathering, Support for National Legislative and Judicial Efforts, and Procedures and Jurisprudence that Reinforce Long-Term Domestic Efforts to Advance Human Rights.

A. Fact-finding Missions and Evidence-gathering

The ACHPR can utilize the evidence gathered during fact-finding missions conducted within its promotional mandate to aid domestic investigations and prosecutions. Under Article 45 of the Charter, the ACHPR may conduct fact-finding missions to collect documents, and undertake studies of human rights abuses on its own initiative or at the request of other AU organs.30 While these missions are not conducted for the purpose of individual criminal prosecutions, they often yield findings that could be used to inform domestic judicial proceedings. For example, a 2013 ACHPR fact-finding mission in Mali uncovered evidence of crimes against humanity in the Aguel’hoc and Diabali attacks as well as the rape of women and girls throughout the crisis.31 ACHPR fact-finding missions typically include meetings with government officials, local authorities, and human rights-based civil society groups and NGOs as well as interviews with victims, witnesses, and sometimes rebel factions.32 The information gathered during these missions could be used to identify perpetrators, build an evidentiary basis for their arrest and indictment, and eventually prosecute them. Where the ACHPR is confident that a State with jurisdiction is capable of arresting and prosecuting perpetrators, as well as guaranteeing victim and witness safety, it should share this evidence.

With this, the ACHPR can utilize its existing relationships with human rights NGOs across Africa to facilitate evidence-gathering in the wake of mass atrocities. Human rights professionals are often best positioned to record evidence of serious international crimes because they are present during or in the immediate wake of mass violence while other criminal law actors are not.33 Investigators and court representatives, for instance, typically do not visit the site of the crime until months or years after the fact.34 International law scholars Morten Bergsmo and William Wiley propose that where it is safe to do so and human rights officials are properly trained, they should interview witnesses and document possible crime scenes by taking photographs or videos, drafting factual reports, properly handling physical evidence, and securing the scene.35 Bergsmo and Wiley likewise suggest that human rights officials can provide valuable testimony as linkage or expert witnesses at trial.36 The ACHPR interacts with a myriad of human rights organizations in Africa, including 151 NGOs that have been granted observer status to the commission.37 The ACHPR should utilize its existing NGO network to expedite and improve the collection of physical evidence as well as first or secondhand testimony following mass atrocities. Gathering evidence through sources closer to an alleged crime will help ensure domestic or international prosecutors have a sufficient evidentiary basis to charge and prosecute perpetrators. Thus, both the ACHPR’s fact-finding missions and its robust network with human rights NGOs are valuable investigative tools that could be used to support national judicial proceedings.

B. Support for National Legislative and Judicial Efforts

The AU and ACHPR can further promote complementarity by supporting States in their efforts to incorporate human rights crimes into national law and prosecute individuals for international crimes. Incorporating the Rome Statute into national law is an important step towards effectively prosecuting individuals for international crimes. This step is especially essential in dualist countries, where treaties are not automatically incorporated into national law upon ratification.38 However, even in monist States, where international treaties are automatically binding on the State, merely ratifying the Rome Statute is likely not sufficient to effectuate domestic prosecution of international crimes.39 As a Human Rights Watch handbook on implementing the Rome Statute explains:

As the Rome Statute has the potential to impact on a wide range of national laws, including constitutional provisions and criminal substantive and procedural law, relying solely on automatic incorporation into national law may not be sufficient to meet the Rome Statute treaty obligations. Specific national laws, especially relating to substantive and procedural criminal law, should be enacted.40

Thus, the AU should work with State legislatures to promote the development of national policy on the prosecution of international crimes. In 2016, the AU produced a model national law on universal jurisdiction over international crimes.41 The model law provides statutory definitions for the crime of genocide, crimes against humanity and war crimes that are consistent with the Rome Statute, as well definitions for terrorism, and piracy and model language for clauses on individual criminal responsibility, rights of the accused, and punishment.42 The AU should continue to disseminate this model and create other models for national laws adopting courts to prosecute international crimes and codifying the Rome Statute. These models can help expediate domestic legislative efforts to codify the Rome Statute and develop the proper criminal substantive and procedural law to actualize prosecutions.

Second, the ACHPR should host regular conferences about international criminal and human rights law to help train African legal professionals in these fields. Even where a legal framework for international crimes exists, genuine prosecutions are often stalled by a lack of properly trained legal staff. The Ugandan situation is a prime example. Beginning in the late 1980s, the LRA rebel group committed mass human rights violations against civilian populations in Northern Uganda.43 In 2003, the Ugandan government invited the ICC to investigate.44 Five years later, in 2008, Uganda established an International Crimes Division (ICD) under the High Court of Uganda to try international crimes including genocide, crimes against humanity, war crimes, terrorism, human-trafficking and more.45 Likewise, in 2010, Uganda incorporated the Rome Statute into Ugandan law.46 Despite these significant legislative advancements, however, the ICD has struggled to convict any individuals or achieve genuine complementarity. A Human Rights Watch report detailed that some major obstacles to the ICD’s success are conflicts of law and unfamiliarity with novel international crimes, inadequate resources for criminal defendants, and limited investigative and legal staff.47 By hosting regular symposiums, seminars, and conferences dedicated to international criminal investigations and prosecutions, the ACHPR could, first, help legal professionals navigate the complex, unique challenges of international criminal law by inviting experts and providing a forum for knowledge-sharing. Second, the ACHPR could use these conferences to build up a network of qualified, experienced African international criminal law professionals who may be willing to help fill resource gaps in States like Uganda. By providing legislative resources and forums for legal training the AU and ACHPR can positively influence the long-term development of national judicial systems.

C. Procedures and Jurisprudence that Reinforce Long-Term Domestic Efforts to Advance Human Rights

Moreover, the ACHPR and ACtHPR should develop procedures and jurisprudence that reinforce existing efforts to advance human rights and hold perpetrators of mass atrocities accountable. James Cavallaro and Stephanie Brewer first posited that in regions that suffer from “large-scale, endemic human rights violations,” regional courts are most likely to be effective when their procedures and jurisprudence are relevant to social movements, human rights activists, media campaigns, civil society groups, progressive government officials, etc. who are engaged in long-term efforts to advance human rights.48 This theory can be applied to the ACHPR and ACtHPR. In fact, a study on ACHPR decisions from 1994 to 2003 found that local and international NGO engagement significantly improved State compliance and follow-through with commission recommendations.49 Likewise, Obiora Chinedu Okafor found that the ACHPR commission was most effective in Nigeria when its decisions contributed to the existing efforts of domestic human rights activists:

An examination of the operations or mechanics by which such influence was exerted reveals that the system was only able to work in the way it did largely because it allowed itself to be mobilised and deployed in creative ways by various activist groups that operated within Nigeria… The system’s influence enabled them....to launch legal manoeuvres that would not have been possible otherwise… to persuade many in the discerning public to put pressure on the military regime to act in the ways in which these activists desired, [and] to justify preferred interpretations of existing constitutional provisions.50

Thus, while the ACHPR and ACtHPR’s factual analysis and decisions should remain impartial, they should adopt a strategic approach that considers the political and social climate of the States within which they have jurisdiction.

With this, coordinated pressure and support from the AU, its judicial organs, media, and civil society groups can influence States to pursue prosecutions they otherwise would not. The Senegalese use of universal jurisdiction to prosecute former Chadian dictator Hissène Habré demonstrates the impact of broader movements. Habré ruled Chad from 1982 to 1990 during which time his government engaged in mass human rights violations.51 After Habré’s government was overthrown in 1990 he fled to Senegal.52 In 2000, Chadian victims partnered with numerous international human rights organizations to file a criminal complaint against Habré in Senegal.53 The Senegalese government was initially unwilling to prosecute Habré itself, but in May 2006, an AU-appointed committee of African jurists issued a decision calling on Senegal to prosecute Habré on behalf of Africa.54 In response, Senegal implemented a national universal jurisdiction law granting Senegalese courts jurisdiction over Habré’s crimes.55 However, the prosecution remained stalled. Over the next few years, the combined efforts of the AU, press, NGOs, and international justice and human rights organizations culminated in the formation of the Extraordinary African Chambers (EAC)—an ad hoc tribunal within Senegal’s existing court system with jurisdiction to prosecute Habré.56 In 2016, the EAC convicted Habré of crimes against humanity, war crimes, and torture.57 While the Habré case relied on the exercise of universal jurisdiction, it illustrates how the AU, ACHPR, and ACtHPR can more effectively promote prosecution by coordinating their efforts with existing positive political and social movements.

V. Challenges

In this section I examine some of the practical challenges the AU, ACHPR, and ACtHPR would face in implementing the strategies discussed above. First, the ACHPR and ACtHPR likely do not have sufficient funding to adopt extensive programming. In 2020, the AU reduced both the ACHPR and ACtHPR’s budgets.58 Specifically, the ACHPR’s budget was reduced by 14% with all funds earmarked for either operating or recurrent expenditures and no funds allocated to program activities.59 At the ACHPR 2020 extraordinary session Commissioner Solomon Dersso expressed the limiting impact of reduced funding:

Unfortunately, the means available at our disposal and the capacity of our institution are very limited and the context in which we operate is highly constrained. The weight and nobility of our mandate and enormity of the demand for human rights protection on our continent means that we have to work beyond the call of duty mustering all the energy, time, and limited capacity.60

With such expansive mandates and comparably limited funding the ACHPR and ACtHPR likely do not have the capacity to significantly expand programming or host large-scale training events.

Furthermore, there may be resistance to ACHPR investigation and evidence-gathering in member States. First, State governments may be unwilling to allow the ACHPR to conduct fact-finding missions altogether. Particularly where government officials have been complicit in human rights violations, they have strong incentives to block the ACHPR’s access to the State and are likely to decline requests for fact-finding missions. Beyond this, it may be too dangerous for ACHPR staff, other human rights professionals, and witnesses and victims to engage in evidence-gathering in active crisis zones. Utilizing the ACHPR’s promotional mandate and NGO network to identify and prosecute individual perpetrators of mass atrocities may endanger ACHPR and NGO officials in crisis situations by making them targets of perpetrators. Thus, this strategy likely could not safely be implemented broadly.

Moreover, the ACHPR and ACtHPR’s action will likely also be constrained by political backlash from member States. States may, for example, threaten to or actually withdraw from the Protocols granting the ACHPR and ACtHPR jurisdiction over them. For example, in 2019, Tanzania withdrew its declaration under Article 34(6) of the ACtHPR Protocol disallowing NGOs and individuals from directly filing cases against Tanzania.61 An Amnesty International report suggests that Tanzania’s withdrawal was truly motivated by a desire to evade accountability in response to judgments by the court against Tanzania.62

VI. Conclusion

The ACHPR and ACtHPR can promote positive complementarity in Africa in a number of ways outside of prosecuting individual criminal defendants. While the organs will grapple with some practical constraints, the ACHPR and ACtHPR can work within their current mandates to engage in fact-finding missions and evidence-gathering, support national legislative and judicial efforts, and develop procedures and jurisprudence that support long-term efforts to advance human rights.

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

  1. 1.

    Office of the Prosecutor, ICC, Prosecutorial Strategy 2009–2012 (Feb. 1, 2010) [hereinafter Prosecutorial Strategy], available online.

  2. 2.

    Situations under Investigation, ICC, available online (last visited Aug. 29, 2023).

  3. 3.

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

  4. 4.

    Id. Art. 5.

  5. 5.

    Prosecutorial Strategy, supra note 1, at 4.

  6. 6.

    Rome Statute, supra note 3, at Art. 17.

  7. 7.

    Id.

  8. 8.

    Prosecutorial Strategy, supra note 1, at 5.

  9. 9.

    Daniel Abebe, Does International Human Rights Law in African Courts Make a Difference?, 56 Va. J. Int’l L. 527, 539 (2016), available online.

  10. 10.

    History of the African Charter, ACHPR, available online (last visited Aug. 29, 2023).

  11. 11.

    Organization of African Unity, African Charter on Human and Peoples’ Rights, 21 Int’l L. Materials 58, Art. 17 (Jun. 27, 1981, entered into force Oct. 21, 1986) [hereinafter Banjul Charter], available online.

  12. 12.

    AU Echo, 2016: African Year of Human Rights with a Focus on the Rights of Women, 58–60 (Jul. 2016), available online.

  13. 13.

    History, ACHPR, available online (last visited Aug. 29, 2023).

  14. 14.

    Frans Viljoen, The African Court on Human and Peoples’ Rights, in International Human Rights Law in Africa 420 (Sep. 2007), paywall, doi.

  15. 15.

    African Union, Constitutive Act of the African Union, Art. 2 (Jul. 11, 2000, entered into force May 26, 2001), available online.

  16. 16.

    Id. Art. 5.

  17. 17.

    Abebe, supra note 9, at 576.

  18. 18.

    Organization of African Unity, Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, Art. 3 (Jun. 10, 1998, entered into force Jan. 25, 2004), available online.

  19. 19.

    Id. Arts. 2, 3.

  20. 20.

    Pascifique Manirakiza, Complementarity between the International Criminal Law Section and Human Rights Mechanisms in Africa, in The African Court of Justice and Human and Peoples’ Rights in Context: Developments and Challenges 989 (Charles Chernor Jalloh, Kamari Maxine Clarke & Vincent Obisienunwo Orlu Nmehielle, eds., May 2, 2019), available online.

  21. 21.

    African Union, Protocol on the Statute of the African Court of Justice and Human Rights, Art. 2 (Jul. 1, 2008), available online.

  22. 22.

    Abebe, supra note 9, at 577.

  23. 23.

    List of Countries that have Signed, Ratified/Acceded to Protocol on the Statute of the African Court of Justice and Human Rights, AU, (updated Jun. 18, 2020), available online.

  24. 24.

    Sarah P. Nimigan, The Malabo Protocol, the ICC, and the Idea of “Regional Complementarity,” 17 JICL 1005, 1006–07 (Nov. 5, 2019), paywall, earlier version, doi.

  25. 25.

    Id. at 1008.

  26. 26.

    Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Art. 3 (Jun. 27, 2014) [hereinafter Malabo Protocol], available online.

  27. 27.

    List of Countries that have Signed, Ratified/Acceded to Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, AU (updated May 20, 2019), available online (last visited Aug. 29, 2023).

  28. 28.

    Manirakiza, supra note 20, at 990–91.

  29. 29.

    Id. at 992.

  30. 30.

    Banjul Charter, supra note 11, at Art. 45.

  31. 31.

    African Commission on Human and Peoples’ Rights, Report of the Fact-Finding Mission to the Republic of Mali 18 (2013), available online.

  32. 32.

    Amnesty International, A Guide to the African Commission on Human and Peoples’ Rights 17 (Nov. 2, 2007), available online.

  33. 33.

    Morten Bergsmo & William H. Wiley, Human Rights Professionals and the Criminal Investigation and Prosecution of Core International Crimes, in Manual on Human Rights Monitoring: An Introduction for Human Rights Field Officers 13 (2008), available online.

  34. 34.

    Id.

  35. 35.

    Id. at 14–17.

  36. 36.

    Id. at 24–25.

  37. 37.

    Network: Non-governmental Organizations, ACHPR, available online (last visited Aug. 29, 2023).

  38. 38.

    Human Rights Watch, Making the International Criminal Court Work: A Handbook for Implementing the Rome Statute 6 (Sep. 2001), available online.

  39. 39.

    Id.

  40. 40.

    Id.

  41. 41.

    African Union, Model National Law on Universal Jurisdiction over International Crimes (Jul. 13, 2012), available online.

  42. 42.

    Id.

  43. 43.

    Elise Keppler, HRW, Justice for Serious Crimes Before National Courts: Uganda’s International Crimes Division 4 (Jan. 2012), available online.

  44. 44.

    Id.

  45. 45.

    Uganda, CICC, available online (last visited Aug. 29, 2023).

  46. 46.

    Keppler, supra note 43, at 5.

  47. 47.

    Id. at 12, 16, 19.

  48. 48.

    James L. Cavallaro & Stephanie Erin Brewer, Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court, 102 Am. J. Int’l L. 768 (2008), available online.

  49. 49.

    Frans Viljoen & Lirette Louw, State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights: 1992–2004, 101 Am. J. Int’l L. 1, 28–30 (Jan. 2007), available online.

  50. 50.

    Obiora Chinedu Okafor, The African System on Human and Peoples’ Rights, Quasi-Constructivism, and the Possibility of Peacebuilding Within African States, 8 Int’l J. of Hum. Rts. 452 (Jan. 2004), available online.

  51. 51.

    Reed Brody, Bringing a Dictator to Justice: The Case of Hissène Habré, 13 J. Int’l Crim. Just. 209 (May 2015), available online, doi.

  52. 52.

    Id.

  53. 53.

    Id. at 210.

  54. 54.

    African Union, Doc. Assembly/AU/3 (VII), Decision on the Hissène Habré Case and the African Union (Aug. 2006), available online, archived.

  55. 55.

    Reed Brody, Brot für die Welt, Victims Bring a Dictator to Justice: The Case of Hissène Habré 6 (Jun. 2017), available online.

  56. 56.

    Id. at 12.

  57. 57.

    Id. at 6.

  58. 58.

    Amnesty International, The State of the African Regional Human Rights Bodies and Mechanisms 2019–2020 at 7 (2020), available online.

  59. 59.

    Id.

  60. 60.

    Id. at 46.

  61. 61.

    Id. at 41.

  62. 62.

    Id.

Victim Over Verdict—How Exercising Universal Jurisdiction Means Promoting the Interests of Victims of International Atrocities

In this comment, I argue that in order to exercising universal jurisdiction, the International Criminal Court’s (ICC) Office of the Prosecutor (OTP) should prioritize the interests and desires of the victims of international atrocities. In Part I, I explain why the OTP should prioritize victims. In doing so, I define universal jurisdiction and explain why universal jurisdiction should be victim centric. Specifically, I argue that universal jurisdiction has been historically justified primarily due to its impact on victims of atrocities and therefore, victim involvement is crucial when the OTP wishes to carry out trials under universal jurisdiction. In Part II, I provide recommendations for how I envision the OTP can take a more victim-centric approach when prosecuting wrongdoers. I detail the spectrum of involvement victims could have in trials and provide a guideline for when the OTP should increase victim participation in trials.

I. Why the OTP Should Prioritize the Interest of Victims in Exercising Universal Jurisdiction

A. What Is Universal Jurisdiction?

Jurisdiction refers to the official power to make legal judgements and decisions. Most forms of jurisdiction require a direct connection between the State and the offense.1 Thus, jurisdiction is centered around the following principles:

The primary principles for establishing jurisdiction over a certain criminal act are based on: (a) the place where the crime occurred—the territoriality principle; (b) the nationality of the offender—the nationality principle; (c) the nationality of the victim—the passive personality principle; and (d) protecting the States’ vital interests—the protective principle.2

Universal jurisdiction is distinct from these other forms because there is no such requirement of a direct connection between the State and the offense. Rather, universal jurisdiction permits States to exercise jurisdiction over alleged criminals, regardless of where the crime happened, the alleged perpetrator’s nationality or the citizenship of the victim. Because universal jurisdiction does not require a state to have any connection to the alleged criminal, it effectively enables one legal community to impose its laws upon another. For example, Belgium issued an arrest warrant against Abdoulaye Yerodia Ndombasi, a politician in the government of the Democratic Republic of the Congo for inciting genocide in 1998. However, the alleged acts Yerodia committed happened outside of Belgium, Yerodia was not a Belgian national, and none of the victims of Yerodia’s alleged offenses were Belgian nationals.3 So, when Belgium issued an arrest warrant against Yerodia, that was an exercise of universal jurisdiction.

The first widespread exercise of universal jurisdiction occurred as a result of the crime of piracy, which is the act of attacking or robbing ships at sea.4 Every state has long had legislative, adjudicatory, and enforcement jurisdiction over all piratical acts on the high seas.5 Universal jurisdiction also has strong historical roots in the slave trade. The universality principle expanded in the postwar trials of individuals who had committed various wartime offenses, including war crimes and crimes against humanity.6 Specifically, it was brought against Nazis following World War Two. Universal jurisdiction was exercised against Adolph Eichmann, a Nazi official who was abducted by Israeli agents in Argentina and brought to Israel for trial due to his war crimes or crimes against humanity.7

B. Universal Jurisdiction and Victims

To exercise universal jurisdiction is to protect the interest and desires of the victims of heinous crimes. This is because any justification for exercising universal jurisdiction is based on the impact of the crime on the victim. Since universal jurisdiction cannot be justified through the place where the crime happened or the citizenship of the people to whom the crime happened, universal jurisdiction is justified based on the “underlying nature of the crime.”8 More specifically, universal jurisdiction is commonly “explained on grounds that certain international crimes are so heinous that they “shock the conscience of humanity.”9

This justification was used in the earliest form of universal jurisdiction in piracy. Universal jurisdiction was applied in part because “pirates were considered to have waged war [against]…all states,”10 were considered the enemies of all humanity, and involved “particularly heinous and wicked acts of violence or depredation.”11 Similarly, slave trade practices were subjected to universal jurisdiction because of the “gravity of the crime against a person’s liberty.”12 This justification can be seen again in the case of Nazi Germany, where the “shared abhorrence [was felt by] all civilized nations for the serious criminal activities committed in the course of the Second World War”13 and the crimes were believed to be “so monstrous”14 that they could not be condoned.

This justification can be seen clearly in an example Devika Hovell outlines in her paper examining the authority of universal jurisdiction:

For example, if Saudi Arabia, Pakistan, Somalia, Taiwan and the Philippines were to enter into a treaty agreeing to prosecute anyone found in their territory suspected of adultery regardless of the nationality of the offender or the state in which the conduct occurred, would the existence of the treaty obligation between these states render the prosecution of a UK citizen for adultery committed in the UK justifiable? One is tempted to answer “no”. However, the only basis upon which we can distinguish this from the torture example is by looking to the underlying nature of the crime. The source of jurisdiction does not derive ultimately from the treaty obligation but from a deeper sense that certain crimes are justifiably of broader concern such that third states are justified in prosecuting them.15

Devika’s example shows that it’s not just that certain territories agree to exercise jurisdiction over any crime and universal jurisdiction may magically apply. Rather, universal jurisdiction is based on an idea that there are certain kinds of crimes that intuitively feel ickier than others. I would argue that what makes piracy or the slave trade or crimes against humanity more despicable than something like adultery is how those crimes impact the victims. First, the impact lies in the number of victims. Where slave trade and piracy which may impact hundreds of thousands of people, adultery may impact a dozen or less. There is also a greater impact on what actually happens to the victims. Whereas slaves are brutalized, humiliated, raped, and physically beaten, pain resulting from adultery is almost certainly less severe.

This logic is spelled out explicitly in Miram Cohen’s paper describing the parallels between piracy and human trafficking in exercising universal jurisdiction. Cohen outlines two rationales for universal jurisdiction: (1) how widespread the effect of the crime and (2) the grave nature of the crime.16 Both of these rationales are directly connected to the protection of victims. The widespread nature of the crime relates to the sheer number of victims impacted. As Cohen points out, universal jurisdiction was exercised against pirates because their attacks were “made without regard to the vessel’s flag or the nationality of the victims.”17 The gravity justification relates to how serious the impact of the crime on the victim was. According to Cohen, these are crimes that are so harmful to victims that they endanger international peace and security.18 As such, universal jurisdiction envisages a responsibility on the part of the international community to protect people from human rights violations.

Universal jurisdiction is more than just protecting State interest. It’s about protecting people against states. It’s not about the States. It’s about people. It’s about victims. And in the eyes of exercising universal jurisdiction, it hardly matters who the victim is. Or where the victim lives. Or if the victim’s trauma has any economic impact on some occupied land. When all those factors are stripped away, all that’s left are the victims.

C. OTP and Victims

The OTP of the ICC cannot exercise universal jurisdiction without victims. First, victims are typically the ones alerting the ICC to the crimes. Victims also get the case off the ground by:

[I]nitiating the complaints and providing the authorities with essential information, including the location of the suspect, the nature of the accusations and the names of potential witnesses living in the host state or overseas.19

At the trial stage, victims also serve as key fact and emotional witnesses to the atrocities.

This extraordinary role in prosecutions makes sense. Cases against perpetrators literally would not exist without the victims. Victims are the ones most impacted by the crimes. They suffer the primary harm—the harm of the crime.20 Victims and their families must deal with the lifelong ramification of those crimes. Thus, “criminal law does not perform its role adequately, if it does not pay attention to the needs of the victim.”21

II. How the OTP Take a Victim-Centric Approach When Trying Cases

A. How Much Should Victims Be Involved in the Trials?

Throughout criminal law, there is a wide spectrum regarding how involved victims should be in prosecutions with two opposite extremes. On one side is the theory that victims should be minimally involved. This practice is most common in adversarial systems that “pit prosecutor against defendant”22 and in common law jurisdictions. These systems envision the victim’s role as being limited to that of a witness, who “can only speak if called by the prosecution (or defense) and can only answer questions that are posed to him or her.”23 On the opposite end of the spectrum is one where victims have extensive participatory rights. This is more common in civil law jurisdictions. For example, victims in Argentina can have a victim prosecutor who can do anything from submitting declarations to reviewing and presenting evidence to examining witnesses.24

B. The ICC v. the Prosecutor—Opposite Sides of the Spectrum

The ICC chambers and the OTP have often fallen on opposite sides of the victim participation spectrum. The ICC consistently favors more participatory rights for victims rather than less. According to the Rome Statute:

[W]here the interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.25

In practice, Pre-Trial Chamber II has interpreted this provision broadly, that is, in a way that allows for more victim participation. Pre-Trial Chamber II has held that Article 68(3) permits victims to participate in proceedings relating to the investigation of a situation and that victims are permitted to question witnesses and introduce evidence.26

On the other end of the spectrum is the Prosecutor. They have consistently opposed the Chamber’s liberal interpretation of the Rome Statute in favor of a narrower view that allows for limited victim participation. According to the OTP, “modalities of participation may not infringe upon the parties’ rights or overlap with the exclusive functions of the Prosecution.”27 This source of tension may be attributable to the fact that the Prosecutor’s express goals are to “hold perpetrators of grave crimes accountable for their actions.”28 As a result, the OTP is not so focused on doing what is best for the victims or ensuring victim participation, especially when doing so might mean sacrificing their case. In fact, to the Prosecutor, too much victim participation disrupts other important interests and functions, like getting a guilty verdict. The Prosecutor has opposed victim participation at the investigation and trial stage of a prosecution, on the basis that victims divert the focus of their investigation, frustrate the prosecution of the defendant, undermine the prosecutor’s trial strategy and potentially increase the cost of prosecution by prolonging proceedings.29

To be sure, it would be unfair to say that victims’ rights and desires do not influence the prosecutor in any way. At times, the prosecutor’s goals can be harmonious with victim’s interests. The first and former Prosecutor of the ICC Luis Moreno-Ocampo explicitly stated that he was “guided by the interests of the victims”30 in the 2004 Ugandan case. And even in instances where the prosecutor may be eager to get a conviction, victims are not doomed to be forgotten. In theory, aggressive prosecution policies, such as those guiding American domestic violence prosecutions, are grounded in the theory that they increase victim safety.31 However, there is a difference between having victims in mind when making decisions and prioritizing them. There is a difference between having goals to prosecute which may or may not happen to benefit victims and ensuring that victims are benefited. There is a difference between guided by the interest of victims and allowing those interests to dictate major decisions. I would argue that when attempting to exercise universal jurisdiction, the OTP should strive to do the latter.

C. What Should the OTP Do to Promote the Interest of the Victim?

Exercising universal jurisdiction may begin with a mental shift in the prosecutor. This could mean a shift in how the prosecutor conceptualizes the end goal of a trial. Rather than seeing the primary goal as imprisoning the perpetrator, the prosecutor could envision the primary goal is to make victims whole. Rather than seeing the trial as a pitched, two-sided battle,32 the prosecutor could see it as an opportunity to get justice for the victims. And rather than seeing victims as key witnesses or tools to accomplish the verdict, the prosecutor could see them as human beings with needs and feelings beyond the four corners of a courtroom.

Once the OTP reframes how he thinks of trials and victims within them, the OTP should determine what victims actually need and want out of the prosecution. Following a warning made by Timothy Kuhner in his paper discussing victims in the ICC, the OTP should be mindful to distinguish what victims actually want from what they should want, as relying on assumptions can lead to an Office that is paternalistic.33 The prosecutor should also be mindful that not all victims want the same thing and victims’ interests can be expected to vary between cultures.34 Then, the OTP should ask detailed questions and listen closely to what the victims say. They may find that some victims want protection.”35 Others may want offenders to be prosecuted and punished.36 Others may simply want to tell their stories about what happened.37 And others may want the autonomy and power to make meaningful decisions about what happens to the perpetrators.38 Whatever the desires, it’s the Prosecutor’s responsibility to find out what they are and how to best try a case to further those goals.

And once the prosecutor gets to the trial stage, the focus should not move away from those identified interests. Rather than asking about the ideal trial strategy for the defendant’s prosecution, the OTP’s main question should be this: what should happen in this trial that will accomplish the victim’s goals? This means the prosecutor should determine not merely what the defendant did but how those actions harmed the victim and how a prosecution can best serve them.

This also means the degree of victim participation exercised in any given trial should turn on the impact that participation has on the victim. In cases where the victim needs therapy, to restore their dignity, to contribute to the reconciliation process, or simply to tell their story, victim’s participation should be paramount. This can mean allowing the victim the chance to give an opening statement that may or may not help the trial but will give the victims a public space to tell their story and be validated. This should be the case even when doing so would negatively impact the trial strategy. In cases where the victim needs to heal outside of the process, where retelling that story may lead to retraumatization, the prosecutor should remove the victim from the process as much as possible. This should be the case even if doing so would mean the Prosecutor loses a key witness. In essence, when the Prosecutor has to choose between the verdict and the victim, the Prosecutor should choose the victim.

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

  1. 1.

    Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 Tex. L. Rev. 785, 788 (1988), paywall.

  2. 2.

    Miriam Cohen, The Analogy Between Piracy and Human Trafficking: A Theoretical Framework for the Application of Universal Jurisdiction, 16 Buff. Hum. Rts. L. Rev. 201, 209–10 (2010), available online.

  3. 3.

    Gabriel Bottini, Universal Jurisdiction After the Creation of the International Criminal Court, 36 N.Y.U. J. Int’l L. & Pol. 503, 508 (Dec. 2004), paywall.

  4. 4.

    Randall, supra note 1, at 785.

  5. 5.

    Id.

  6. 6.

    Id.

  7. 7.

    Devika Hovell, The Authority of Universal Jurisdiction, 29 EJIL 427, 442 (May 2018), available online, doi.

  8. 8.

    Id.

  9. 9.

    Id.

  10. 10.

    John Reynolds, Universal Jurisdiction to Prosecute Human Trafficking: Analyzing the Practical Impact of a Jurisdictional Change in Federal Law, 34 Hastings Int’l & Comp. L. Rev. 387, 392 (2011), available online.

  11. 11.

    Randall, supra note 1, at 785.

  12. 12.

    Reynolds, supra note 10, at 387.

  13. 13.

    Hovell, supra note 7, at 440–41.

  14. 14.

    Id.

  15. 15.

    Id. at 427.

  16. 16.

    Cohen, supra note 2, at 216.

  17. 17.

    Id. at 217.

  18. 18.

    Bottini, supra note 3, at 547.

  19. 19.

    Hovell, supra note 7, at 450.

  20. 20.

    Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, 1999 Utah L. Rev. 289, 318 (1999), available online.

  21. 21.

    Timothy K. Kuhner, The Status of Victims in the Enforcement of International Criminal Law, 6 Or. Rev. Int’l L. 95, 134 (2004), available online.

  22. 22.

    Charles P. Trumbull IV, The Victims of Victim Participation in International Criminal Proceedings, 29 Mich. J. Int’l L. 777, 781 (2008), available online.

  23. 23.

    Id.

  24. 24.

    Id.

  25. 25.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 68, available online.

  26. 26.

    Trumbull IV, supra note 22, at 795.

  27. 27.

    Id. at 796.

  28. 28.

    J. Alex Little, Balancing Accountability and Victim Autonomy at the International Criminal Court, 38 Geo. J. Int’l L. 363, 368 (2007), available online.

  29. 29.

    Trumbull IV, supra note 22, at 809.

  30. 30.

    Little, supra note 28, at 378.

  31. 31.

    Id. at 382.

  32. 32.

    William T. Pizzi & Walter Perron, Crime Victims in German Courtrooms: A Comparative Perspective on American Problems, 32 SJIL 37, 55 (1996), paywall.

  33. 33.

    Kuhner, supra note 21, at 139.

  34. 34.

    Id. at 133.

  35. 35.

    Id. at 134–35.

  36. 36.

    Id. at 135.

  37. 37.

    Id. at 137.

  38. 38.

    Id. at 138.

Universal Jurisdiction and Horizontal Complementarity

I. The Problem with Universal Jurisdiction

As the prompt for this question notes, states are becoming increasingly comfortable trying cases under universal jurisdiction. Yet, universal jurisdiction remains a frequently debated issue because its exercise involves infringing traditional state sovereignty.1 When a state invokes universal jurisdiction, it may exercise jurisdiction over an individual accused of committing certain heinous and widely condemned offences (such as genocide, crimes against humanity, etc.), even when no other recognised basis for jurisdiction exists (such as territorial jurisdiction over acts committed in the territory of the state).2 Thus, when exercised properly, universal jurisdiction confers on a state jurisdiction concurrent, not complementary, with the territorial jurisdiction of the state in which the alleged crimes were committed. Nothing in international law suggests that the invoking state must back down from exercising jurisdiction in the face of a competing claim from a state with a purportedly stronger nexus to the case (such as the territorial state).3 This idea is “rooted in the principle of sovereign equality.”4

The Rome Statute confronts a similar tension, but as between the International Criminal Court (ICC) and states parties, in Article 17. Titled “Issues of admissibility,” this article puts any case “being investigated or prosecuted by a State which has jurisdiction over it” outside the jurisdiction of the ICC, “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”5 This is the principle of “vertical complementarity” between the ICC and states, and it resolves the problem of concurrent jurisdiction over crimes of genocide, crimes against humanity, war crimes and the crime of aggression.6

However, there is no comparable “horizontal complementarity” principle in international law to resolve the problem of concurrent jurisdiction as between states.7 In a separate opinion in the 2002 International Court of Justice Arrest Warrant judgement, Judges Higgins, Kooijmans and Buergenthal did state that:

A State contemplating bringing criminal charges based on universal jurisdiction must first offer to the national State of the prospective accused person the opportunity itself to act upon the charges concerned.8

In the case itself, Belgium, as the bystander state, had allegedly offered the matter to the DRC to prosecute, and only when the offer was turned down did Belgium invoke universal jurisdiction.9 However, the opinion does not elaborate any further, and there appears to be a general consensus that the rule as elaborated by the judges is only “in the process of developing into a rule of customary international law.”10

The problem of concurrent jurisdiction is compounded by the absence of a transnational ne bis in idem principle. Domestic courts generally may not prosecute an individual for a crime for which they have been acquitted or convicted, but “it is widely accepted…that the principle is not applicable at the transnational level.”11 In a situation in which a territorial state or the state of nationality (a “nexus-state”) has already rendered a verdict (and even when the accused has served her sentence), a bystander state (which perhaps arrests the accused) may exercise “not complementary, but primary and original” jurisdiction.12

The absence of an international ne bis in idem principle, and the issue of concurrent jurisdiction disincentivize states that do want to exercise universal jurisdiction, because they might have to contend with an uncooperative territorial state that refuses to provide critical evidence to the bystander state, or because prosecuting the accused criminal might have undesirable geopolitical consequences.

In a paper on horizontal complementarity, Cedric Ryngaert at the Leuven University and Utrecht University examines the impact that the introduction of a “general ICC-style principle of complementarity” into customary international law would have.13 The full extent of such an impact is outside the scope of this comment. But, the idea of a principle of horizontal complementarity inspired by Article 17 vertical complementarity is intriguing. As Ryngaert explains, such a principle could be a solution to the problems that universal jurisdiction poses.14 In Part II of this comment, I will discuss proposed measures that the Office of the Prosecutor (OTP) can take to facilitate the exercise of universal jurisdiction by states party to the Rome Statute. These steps would likely be part of a policy the OTP would adopt that would address the problem of uncooperative nexus states. Of course, these measures cannot solve the legal problem of concurrent jurisdiction or the lack of a ne bis in idem principle. In Part III of this comment, I explore one solution that would address this problem: the codification of horizontal complementarity in the Rome Statute.

II. Non-Systemic Solutions

Carsten Stahn has observed that “[c]omplementarity enhances observance through threat.”15 And, the OTP is often in a position to make credible threats. Ryngaert explains that the ICC has access to what he calls “multilateral bargaining power.”16 Broadly this is the “legitimacy with which the ICC is imbued” on account of the widespread ratification of the Rome Statute, an independent prosecutor, highly qualified staff, etc.17 A threat by the OTP to investigate a situation in a nexus state is often enough to prompt the state to act. In this case, the OTP’s threat of investigation and prosecution could be used to coerce a state to cooperate with another state invoking universal jurisdiction. This would be somewhat similar to the way the “Pinochet effect” works: In the wake of criminal proceedings in Europe in the 1990s, Chilean prosecutors demonstrated an increased willingness to investigate and prosecute crimes committed during Augusto Pinochet’s regime in Chile.18 National threats of prosecution tend not to have as much coercive power as an international threat of prosecution, because (1) an individual state would lack multilateral bargaining power, and (2) the nexus state may not want to cooperate with the threatening state for unrelated reasons.

Indeed, a threat of investigation and prosecution by the OTP would have more bite than prosecutions even by other international organizations because the ICC may uniquely prosecute sitting heads of state.19 Therefore, a state would likely be more willing to cooperate with a bystander state invoking universal jurisdiction (which cannot prosecute a head of state) if the ICC threatened to investigate.

Of course, threats would likely be necessary only in cases where the nexus state is in some way antagonized by the bystander state’s exercise of jurisdiction. Ryngaert notes that this is not often the case: “The home state will normally welcome [or at least “acquiesce” to] the prosecution by the bystander state.”20 Usually, the accused has fled his home state where he has been sidelined by a new regime that has seized power.

Where there is an absence of antagonism between the nexus state and bystander state, the OTP may step in to facilitate cooperation between the two states, in the name of positive complementarity. In its 2006 Report on Strategy, the OTP explained its expansive view of complementarity to include the “creat[ion of] an interdependent, mutually reinforcing international system of justice” that incorporates “national and international networks” and that “participates in a system of international cooperation.”21 In the context of universal jurisdiction, in which both the nexus state and bystander state are willing to cooperate with the ICC, “positive complementarity means that the Court and the state cooperate with a view to bringing international criminals to justice.”22

Ryngaert notes that “[f]or national prosecutors, it will always be an uphill struggle to mobilize resources for prosecutions that do not directly reduce domestic criminality.” The OTP can always step in and provide resources generally helpful for the prosecution of international criminals that the bystander state lacks. Under Article 93 of the Rome Statute, the ICC may, subject to the consent of all states involved, be a forum for the transfer of evidence relevant to the prosecution of the accused criminal under universal jurisdiction.23

III. Codification as a Systemic Solution

Neither the OTP’s case-specific coercive use of the ICC’s multilateral bargaining power, nor its actions in accordance with its mission of positive complementarity translate into an effective, systemic solution to the problems associated with universal jurisdiction. If making it easier for states to exercise universal jurisdiction is a desirable goal, the codification of horizontal complementarity into the Rome Statute might be an effective solution.

The legislatures of some member states already provide for a horizontal complementarity principle in their own domestic laws. The Code of Criminal Procedure in Germany provides that the federal prosecutor can renounce the prosecution of an act that violates international law if that act is prosecuted by a state on whose territory the office was committed, whose national is suspected of having committed it, or whose national was harmed by it.24 Belgium has a similar provision in its criminal code.25 Neither provision, however, forces the prosecutor to adhere to the principle of horizontal complementarity, but only leaves the matter to her discretion. No other state has a similar provision in their criminal code.26

In her paper on universal jurisdiction and the ICC, Laura Burens explains that a form of horizontal complementarity modelled after Article 17 of the Rome Statute could be used “to guarantee a coherent application of a subsidiary universality principle” between member states of the ICC.27 This “subsidiary universality principle” would authorize a bystander state to step in only when it has “serious reason to believe that the territorial state is manifestly unwilling or unable to prosecute the alleged offender.”28

An amendment to the Rome Statute of this nature would require an amendment under Article 122, according to which any state party may propose the amendment, which would then have to be accepted by consensus, failing which the Assembly of States Parties (ASP) or a Review Conference must adopt them by a two-thirds majority.29 But the amendment process would likely not represent a substantial hurdle. Burens argues that by ratifying the Rome Statute, “member states have indirectly also accepted a complementarity regime on the inter-state level,” because they have “subscribed to the vision of justice underlying the complementarity principle.”30 Even if the acceptance of the complementarity regime does not automatically translate into a legal obligation to respect horizontal complementarity, it does highlight that mutual trust and recognition exists between the member states, by virtue of their shared mission to prosecute mass atrocities, at least within their own territories. If they fail to comply with their obligations, other member states should be able to step in.31 The ICC can play a crucial role here to guarantee that the exercise of jurisdiction by bystander member states is fair, coherent and transparent. An amendment to the Statute codifying horizontal complementarity is therefore in the declared interests of bystander and nexus states.

Horizontal complementarity would not make for a particularly controversial amendment for another reason: it describes obligations and expectations of states parties very similar to those described by the principle of vertical complementarity, as laid out in Article 17 of the Rome Statute. ICC-facilitated horizontal complementarity leans into a passive complementarity reading of Article 17. It provides an alternative to the ICC taking a case another member state wishes to prosecute (and when the territorial state cannot or will not prosecute). The ICC can therefore delegate its cases to member states that, by virtue of their membership, subscribe to the same vision as the ICC.

Codification would solve the problems of concurrent jurisdiction and the absence of a ne bis in idem principle, because a mutually subscribed to third-party—the ICC—would mediate the transfer of the case from nexus state to bystander state. This mediation would require that the nexus state respect the ne bis in idem principle in accordance with provisions analogous to those in Article 20 of the Statute. Article 20 provides that:

No person shall be tried by another court for [an Article 5] crime…for which that person has already been convicted or acquitted by the Court.32

The Court may vice versa not try a crime that has already resulted in conviction or acquittal.33 In addition, the Court could facilitate negotiations between the bystander state and nexus state, in order to ensure that the bystander state’s exercise of universal jurisdiction is appropriate and fair. In case of a extreme dispute that the OTP and the Court do not wish to or cannot resolve, settlement could be found via procedures provided for in Article 119, which permits referral of disputes between states parties to the ASP and the International Court of Justice.34

Finally, in the interests of fairness and transparency, the ICC would be able to monitor proceedings in the bystander court and demand information, that it could share with the nexus state, per Article 18.35 If the monitoring OTP determines that the bystander state is not properly trying the case, or is unjustly delaying the trial, the ICC can always appropriate the case from the bystander state, in accordance with Article 17. In the normal exercise of universal jurisdiction, no similar mechanism in international law exists that would guarantee that universal jurisdiction is being exercised properly.

IV. Conclusion

The OTP has some means by which it could assist states that seek to exercise universal jurisdiction. The OTP could harness the ICC’s multilateral bargaining power to issue credible threats of investigation and prosecution to uncooperative nexus states. And when the state does cooperate, the OTP could facilitate information sharing between the states and provide resources helpful for the prosecution to the bystander state.

But, as Burens notes:

[S]tates usually engage in [universal jurisdiction] prosecutions only if they minimize the risk of political and diplomatic tensions and do not infringe in the sovereignty of other states.36

These risks would be practically neutralized, at least as between member states, if the principle of horizontal complementarity were amended into the Rome Statute along the lines of Article 17 vertical complementarity. Not only would this eliminate the problems of concurrent jurisdiction inherent in the exercise of universal jurisdiction, but would contribute to a harmonization of the prosecution of international crimes. Under a horizontal complementarity regime, the ICC would serve as a forum for the efficient and fair distribution of relevant criminal trials among its member states, especially when the nexus state and bystander state wish to cooperate. The exercise of universal jurisdiction is becoming more common, but it requires the systemic intervention of the OTP, and the ICC generally, to transform universal jurisdiction into a powerful mechanism for prosecuting mass atrocities.

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

  1. 1.

    Cedric Ryngaert, Horizontal Complementarity, in The International Criminal Court and Complementarity: From Theory to Practice 855, 857 (Carsten Stahn & Mohamed M. El Zeidy eds., 2011), paywall, doi.

  2. 2.

    Jeffrey L. Dunoff, Monica Hakimi, Steven R. Ratner & David Wippman, International Law: Norms, Actors, Process 290 (Feb. 1, 2020), paywall.

  3. 3.

    Ryngaert, supra note 1, at 857.

  4. 4.

    Id. at 858.

  5. 5.

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

  6. 6.

    Id. Art. 5

    (limiting the ICC’s jurisdiction to these crimes).

  7. 7.

    Ryngaert, supra note 1, at 858.

  8. 8.

    Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgement, 2002 I.C.J. Rep. ¶ 59 (Feb. 14, 2002) (separate opinion by Rosalyn Higgins, Pieter Kooijmans & Thomas Buergenthal), available online.

  9. 9.

    Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgement, 2002 I.C.J. Rep. ¶ 16 (Feb. 14, 2002), available online.

  10. 10.

    Laura Burens, Universal Jurisdiction Meets Complementarity: An Approach Towards a Desirable Future Codification of Horizontal Complementarity Between the Member States of the International Criminal Court, 27 Crim. L. Forum 75, 77 (2016), paywall, doi.

  11. 11.

    Ryngaert, supra note 1, at 860–61.

  12. 12.

    Id. at 861.

  13. 13.

    Id. at 860.

  14. 14.

    Id.

  15. 15.

    Carsten Stahn, Complementarity: A Tale of Two Notions, 19 Crim. L. Forum 87, 97–98 (2008), available online.

  16. 16.

    Ryngaert, supra note 1, at 863.

  17. 17.

    Id. at 862–63.

  18. 18.

    See Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (2005), paywall.

  19. 19.

    See, e.g., Kenyatta Appears at ICC in Hague for Landmark Hearing, BBC News, Oct. 8, 2014, available online

    (discussing the situation in Kenya, in which President Uhuru Kenyatta was subject to an ICC indictment).

    Press Release, Office of the Prosecutor, ICC, ICC Prosecutor Presents Case Against Sudanese President, Hassan Ahmad Al Bashir, for Genocide, Crimes Against Humanity and War Crimes in Darfur (Jul. 14, 2008), available online

    (discussing the situation in Darfur, Sudan, in which the ICC twice issued warrants for the arrest of then-President Omar al-Bashir).

  20. 20.

    Ryngaert, supra note 1, at 864.

  21. 21.

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

  22. 22.

    Ryngaert, supra note 1, at 865.

  23. 23.

    Rome Statute, supra note 5, at Art. 93(10).

  24. 24.

    Strafprozessordnung [StPO] § 153(f)(2)(4) (in force Jan. 1, 2017) (ger.), available online.

  25. 25.

    Belgian Code of Criminal Procedure and Civil Procedure, Art. 10(1 bis), Art. 12 bis (entered into force 2003) (Dut.), available online.

  26. 26.

    Ryngaert, supra note 1, at 873.

  27. 27.

    Burens, supra note 10, at 78–80

    (outlining what a provision codifying horizontal complementarity might look like).

  28. 28.

    Id.

  29. 29.

    Rome Statute, supra note 5, at Art. 122(2).

  30. 30.

    Burens, supra note 10, at 81.

  31. 31.

    Amnesty International, Initial Recommendations for a Convention on Crimes Against Humanity 7 (Apr. 28, 2015), available online

    (explaining that the Preamble to the Rome Statute acknowledges that the existence of universal jurisdiction over crimes against humanity “and the duty, not just the power or right, to exercise this jurisdiction for these crimes”).

  32. 32.

    Rome Statute, supra note 5, at Art. 20(2).

  33. 33.

    Id. Art. 20(3).

  34. 34.

    Id. Art. 119(2).

  35. 35.

    Id. Article 18(5)

    (providing that on deferral of a matter to the nexus state, “the Prosecutor may request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions. States Parties shall respond to such requests without undue delay.”).

  36. 36.

    Burens, supra note 10, at 96.

I. Introduction

The principle of complementarity aims at granting jurisdiction to a subsidiary body when the main body fails to exercise its primacy jurisdiction.1 In the case of the International Criminal Court (ICC), this would mean interfering only when the national jurisdiction was unwilling or unable to prosecute pursuant to Article 17 of the Rome Statute.2

One of the major issues that the ICC has been facing since its creation is the case load. With such a vast jurisdictional reach, the ICC, unfortunately, cannot take on every international crime around the world, and often finds itself prioritizing the most severe ones. The issue, however, is that it could give leaders the perception that there is a high chance that the ICC will enable their violations to go unnoticed. This comment will seek to argue that the ICC can surmount this challenge through the principle of complementarity, which will both ease its workload while still ensuring criminal prosecutions. This principle can be applied by collaboration with regional organizations, which could assume jurisdiction in certain circumstances. According to Article 87(6) of the Rome Statute,3 the ICC:

[M]ay ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.

Regional organizations can significantly contribute to the ICC’s work.

Regional organizations are defined as a subcategory of international organization and can be financial and nonfinancial institutions.4 They consist of those supranational institutions whose members are governments or monetary authority of economies that are located in a specific region of the world.5 This comment will mainly focus on regional courts, and the extent to which the Office of the Prosecutor (OTP) may work with such courts to develop further the principle of complementarity by giving them jurisdiction to prosecute certain crimes. Firstly, this comment will explore the ability of regional courts to act as regional ICC s by looking into the Malabo Protocol and its suggested African Court of Justice and Human Rights (ACJHR). Secondly, it will explore the possibility of establishing regional circuit chambers within regional courts to make the ICC system more accessible. Thirdly, it will provide a discussion on the interpretation of Article 17 as including regional organizations. Finally, this comment will conclude on the thought that, while regional courts should be considered for purposes of complementarity under Article 17, their negative consequences, such as fragmentation of international criminal law, must not be undermined.

II. Role 1: A Regional ICC: The African Court of Justice and Human Rights

In October 2016, South Africa withdrew from the Rome Statute and mentioned, in a statement, that:

South Africa will work closely with the African Union (AU) and with other countries in Africa to strengthen continental bodies, such as the African Court on Human and Peoples’ Rights, created to deal with such crimes.6

The South African withdrawal was revoked a few months later in March 2017 after their High Court declaring the withdrawal “unconstitutional and invalid”.7 However, this still shows the general desire to have a regional court in Africa to prosecute similar crimes as the ICC. This was echoed by several African states threatening withdrawal due to an alleged “African bias”, with most cases at the ICC targeting African states. South Africa’s mention of strengthening the African Court on Human and Peoples’ Rights is misleading since that court’s jurisdiction is limited by the Court’s founding Treaty to determining human rights cases and disputes relating to the interpretation of the African Charter on Human and Peoples’ Rights.8 It thus cannot be a regional alternative to the ICC.

What could work as a regional ICC would be the African Court of Justice and Human Rights (ACJHR). In June 2014, AU Assembly of Heads of State and Government met in Malabo and adopted the Protocol on the Statute of the ACJHR which would give the ACJHR jurisdiction to prosecute crimes under international law and transnational crimes.9 If the Protocol came into force, the ACJHR would have jurisdiction to try crimes like genocide, crimes against humanity, war crimes, aggression as well as piracy, terrorism, corruption, money laundering, mercenarism, trafficking in persons, etc.10 Some of these crimes have been of great concern to Africa such as mercenarism and corruption, which have not generated significant international attention.11 It would thus be an African regional criminal court operating akin to the ICC but with narrowly defined geographical scope.

The AU had a Draft Decision on Africa’s Relationship with the ICC which stated that the AU:

PROPOSES that African States Parties to the Rome Statute introduce amendments to the Rome Statute to recognize African regional Judicial Mechanisms dealing with international crimes in accordance with the principles of complementarity.12

The only country that acted on this AU decision is Kenya, which proposed an amendment to Preambular ¶ 10 of the Rome Statute to read:

Emphasizing that the ICC established under this Statute shall be complementary to national and regional criminal jurisdictions.13

It would be possible in theory for the Prosecutor or the ICC to seek information or cooperation from the ACJHR. Article 46L(3) of the Amended ACJHR Statute also permits the ACJHR to “seek the cooperation or assistance of regional or international courts, non-state parties or co-operating partners of the African Union and may conclude Agreements for that purpose.” However, this would depend on the AU’s relationship with the ICC, which is currently strenuous. In 2010, the AU rejected a proposal by the ICC to open a liaison office in Addis Ababa, Ethiopia and the AU consistently called on its members not to cooperate with the ICC.14

Following the Malabo Protocol would ensure complementarity because the Court would be a regional organization with jurisdiction to prosecute international crimes, thus easing the ICC and OTP’s workload. The burden would thus be shared as the Prosecutor and judges could engage in a particularized inquiry to determine which forum is most appropriate in a given case by looking at factors relevant to the interests of the communities each institution represents in adjudicating the case. A possibility would be to have a case transferred to a regional organization in the interests of justice, pursuant to Article 53 of the Rome Statute15 if it is decided to be a better forum to try the offence. The regional court should also have the ability to order states to prosecute, as is the case with the Inter-American Court, rather than merely recommending them to do so. In this case, the ICC would still remain present as additional back-up for whenever national courts are unable and/or unwilling to prosecute pursuant to Article 17 of the Rome Statute.16 The Inter-American Court has also implemented its mandate to include supervising the implementation of its ruling and the case remains seized until there has been full compliance.17 This would be a form of quasi-criminal jurisdiction, which, according to Huneeus, is defined as “the practice by an international body of ordering, monitoring, and guiding national prosecutions.”18 This could assist further in complementarity by enabling prosecutions at the domestic level, which would reduce the need for the ICC to get involved. Jalloh attempts to explore how complementarity might look like in the context of this African Court, by exploring the idea that complementarity would involve first, whether the national authority handled the case or whether it referred it to the regional African Court.19 Then, the ICC would assess whether the regional court had the type of genuine investigations and prosecutions that would be inadmissible to the ICC under Article 17.20 Under this interpretation, there would not be a need to amend the Rome Statute.

This, however, may be unrealistic21 especially since very few states have ratified the Malabo protocol. Furthermore, its immunities clause poses an issue. Article 46A bis gives immunity to serving heads of state or anybody acting in such a capacity. This contravenes Article 27 of the Rome Statute22 and, therefore, clashes with laws from nations such as Kenya and South Africa, which have adapted their internal legislation to the Rome Statute.23 On the other hand, Nel suggests that despite the challenge posed by the immunity clause, this may be circumvented by the principle of complementarity, with the ICC exercising its jurisdiction over serving heads of state where African states were unable to do so due to the immunity granted by the Malabo Protocol.24 Even then, however, the immunities clause is not the only hurdle faced by the Protocol. One challenge is that of funding. The Protocol lacks a funding breakdown, and it remains unclear where the money will come from.25 Furthermore, the African parties’ membership to both the ICC and the ACJHR would create a double burden in addition to domestic obligations.26 Even if the Malabo Protocol was to come to fruition, it is likely that it would want nothing to do with the ICC, particularly due to the recurring critique that the ICC has an African bias. The AU’s aim is to establish a regional criminal court which could keep the ICC out of Africa.27 The initial draft of the suggested court contained a specific reference to complementarity with the ICC, but this was removed from later drafts, likely due to the existing tensions between the AU and the ICC.28 Having an ICC for Africa would reduce the OTP’s workload since the ICC has mainly prosecuted in Africa. However, it could encourage African States, which constitute roughly 1/3 of the ICC’s state parties, to withdraw, which would, in turn, risk the ICC’s legitimacy. On the other hand, it could be argued that the threat to withdrawal may be quite far-fetched since there have been some African cases that have been self-referred (such as Uganda regarding Kony) which demonstrates that there is some will to cooperate with the ICC.29

Therefore, regional courts could be a solution to complementarity, provided they create an authority for individual criminal prosecution, which is at the heart of international criminal law. They could be a more suitable form to prosecute transactional offenses that are a particular issue within that region, in situations where the state and its neighbors face the same or similar challenges.30 Regional courts enable the sharing and implementation of common values that are region-specific. They are also more practical since they would be closer to the state where the conduct occurred, thus bringing justice closer to the people. In the context of Africa, regional courts would also enable a push back on the African bias criticism faced by the ICC. As mentioned by the Kenyan delegation:

[Regional complementarity] is not a way to oust the ICC. It’s the opposite. The regional jurisdiction gets just the first bite… Rather than spring-boarding [from national to international jurisdiction], the ICC would be what it was meant to be, the last resort.31

However, due to the novel concept of having a regional court having the same subject matter jurisdiction as the ICC, there is a need for statutory guidance that would resolve conflicts relating to overlapping jurisdiction,32 as well as an explanation on the relationship between both courts regarding complementarity.

III. Role 2: Regional Circuit Chambers

Another role regional courts could play would be to have circuit chambers established in those courts to facilitate more inclusive access to the ICC system and more effective implementation of a “localized version of international criminal law.”33 This could be useful since, rather than going to the ICC, the case can go to the regional court. It can then be taken on by the circuit chamber who would be more apt to not only apply the Rome Statute but also understand better the circumstances and challenges faced by the region since it would be closer to the state where the conduct occurred.34 This proposal was also echoed by Magliveras who argued that such a format would be based on the circuits/districts existing in the federal court system in the United States of America.35 In this case, the ICC’s judicial functions would be carried out by chambers, and having more chambers is required for the efficient management of the workload.36 Each regional branch would then have a dedicated bench and a dedicated Prosecutor, with each circuit following the current ICC institutional structure, with a Pre-Trial Chamber, a Trial Chamber, an OTP and a Registry, and would sit in one of the contracting parties in the region.37 The Prosecutor in each of these circuits would have the position of a deputy Prosecutor, entitled to carry out any of the acts required of the Prosecutor under the Rome Statute.38

As a result of this structure, the ICC’s role could be that of a Court of Appeal to accept appeals on points of law submitted from the regional courts. Under this framework, according to Jia, the current regime of the Statute under Article 13 will remain intact but may be augmented to enhance its efficacy so that the ICC would accept Article 13 cases but also appeals from regional courts.39 This would be more efficient since it would enable the ICC to conserve its resources by essentially remaining intact but only expanding its Article 13 provision to allow appeals from regional courts. In this case, there needs to be regional treaties signed and ratified that would enable states to confer jurisdiction to a regional court and intend appeals from this court to go to the ICC.40

An issue here is that it may be unrealistic to assume that the ICC would be able to implement circuit chambers in regional courts because doing so requires time, personnel to train in order to place them in those chambers and funding (which is one the ICC’s main recurring challenges). Furthermore, it could be argued that having a portion of the ICC in many regions will lead to a lack of uniformity, which could then hinder the development of international law. Also, for this change to occur, the Rome Statute would need to be amended under Article 17 since this would be a change of an exclusively institutional nature.41 The proposal would have to be accepted by consensus, which, if not attained, the ASP or a Review Conference must adopt them by a two-thirds majority of all contracting parties. Finally, having states sign and ratify a treaty conferring that jurisdiction to that regional court will pose a hurdle since it would be based on the states’ initiative to do so, and there could be some issues with uniformity of case prosecutions if some states in that region ratify the treaty but not others.

An advantage, however, is that it would ease the workload of the OTP. This arguably seems to be a promising solution to ending impunity since, rather than having one ICC handling 123 countries, this would be broken down by region. The ICC’s workload would be diminished because it would act as a court of appeal. Having a somewhat mini-ICC in many regions will ensure that regional systems are closer to the goals of the Rome Statute and will hopefully enable more prosecutions since the scope would be smaller. For example, having a regional circuit chamber for Africa would mean that there would not be any need to create the ACJHR, and instead that circuit chamber would be tasked with investigating, prosecuting, and holding trials for international crimes committed within the territory of African States that are parties to the Rome Statute. This would also have the advantage of pushing back the African bias criticism since the Court would take into consideration African traditions and values while understanding better the challenges faced by the region. It would also have a practical advantage since victims, witnesses and defendants would not need to travel as far as the Hague for justice to be served.

A. Which Regional Courts Should the ICC Cooperate With?

According to Sainati, the Prosecutor should only cooperate with courts that are supported by transnational social movements, which she defines as:

[S]ocially mobilized groups with constituents in at least two states, engaged in at least two states, engaged in sustained contentious interactions with power holders in at least one state other than their own, or against an international actor, or a multinational economic actor.42

If the court is supported by transnational social movements, then the Prosecutor may make a decision about when a regional trial is more likely to serve the ICC’s larger goal of ending impunity and promoting compliance with international criminal law.43 This is because such regional courts would likely increase the likelihood of domestication of international rules.44 This would be an advantage because one of the issues faced by the ICC is that of enforcement. For example, Kenya’s noncompliance compromised the Prosecution’s ability to thoroughly investigate the charges.45 Using regional courts does not mean that the Prosecutor will always defer to regional courts, but rather, he would identify when regional courts are better positioned to domesticate international legal principles and secure compliance with international criminal law.46 Therefore, in this case, it could be possible to argue that the Prosecutor would then be transferring the court from the international to the regional level on the basis of interests of justice under Article 17.

IV. The Interpretation of Article 17 as Including Regional Organizations

Article 17 of the Rome Statute mentions that a case is:

[I]nadmissible where the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.

Based on the plain text of the provision of Article 17, complementarity thus focuses on states and makes no mention of regional organizations. The Court has not yet decided whether an investigation conducted outside of a state, for example by regional organizations, could satisfy Article 17.47 As mentioned above, the ACJHR contains no express insight into the relationship between this court and the ICC.48 It only mentions complementarity to national courts and to the Courts of the Regional Economic Communities49 but does not mention complementarity to international tribunals.

According to Jackson, a case being genuinely investigated or prosecuted by a lawfully constituted regional tribunal or court may be regarded as a prosecution by a State such that the case would be inadmissible before the ICC under Article 17.50 Tiba echoes this by citing CB Murungu’s argument that while the Rome Statute does not mention regional criminal chambers, it can be contended that regional courts have jurisdiction to try international crimes.51 This may be done through “a progressive interpretation of positive complementarity” which could “infer that even regional criminal courts could have jurisdiction over international crimes within the ICC jurisdiction.”52 Under this argument, Article 17 of the Rome Statute can be interpreted to extend to regional criminal courts. Kielsgard and Ip explore this relationship by explaining that the ICC has recognized the jurisdictional priority of other international tribunals such as the International Criminal Tribunal of the former Yugoslavia and the International Criminal Tribunal of Rwanda as subsidiary organs of the United Nations, as well as that of hybrid tribunals such as Special Tribunals for Lebanon, Sierra Leone, and Cambodia.53 Cases taken on by these tribunals would have been inadmissible if they were already handled by national prosecutions.54 A difference, however, is that these tribunals were established by the United Nations Security Council and were not regional courts.55 These tribunals are given priority under the Charter,56 but no such priority is given to regional courts. As mentioned above, the ICC and the ACJHR, as well as any other potential regional courts with the capacity to assist the ICC under complementarity, would need to determine how both courts relate to each other.57 The ICC assumes the power to determine questions of admissibility and jurisdiction under Article 19(1), and according to Article 18, the ICC also has the power to engage in “preliminary rulings regarding admissibility.”58 As mentioned by the Chamber in Prosecutor v. Kony, it has the authority to “interpret and apply the provisions governing the complementarity regime” once its jurisdiction has been triggered.59 This was mentioned before the rise of other complementarity regimes or regional courts and the decision did not involve any issues relating to the ICC and a regional court.60 However, this seems to be the most probable solution. Under this suggestion, the first step to achieving complementarity by collaboration with regional courts would be to have the ICC explain how regional courts relate to the ICC for complementarity to be of use.

The provision could also be interpreted as states conferring jurisdiction to regional courts.61 This argument would somewhat mirror the one used in the context of the Gaza conflict whereby the Palestinian National Authority, which has prosecutorial authority in some parts of the territories, conferred such jurisdiction to the Prosecutor.62 On the other hand, according to Oslo, they were handing over jurisdiction that they did not have. This counterargument then would not apply here since, in this case, the states would be handing over jurisdiction that they do have to regional courts.63 On the other hand, that is not what the Statute says, so the question would be whether, by interpreting it that way, we would be stretching its application. If, in the course of making those amendments, states make it clear that they are conferring jurisdiction to a regional entity with the intent to satisfy Article 17, then this could be a way to interpret the provision without amending the Statute.64 If Article 17 was to extend to regional courts, then they would be held to the unwilling or unable standard of Article 17(1)(b), whereby the ICC would only intervene and assume jurisdiction if the regional courts were unwilling or unable to prosecute.

V. Conclusion

Relativists argue that the ICC is doomed to fail for being too culturally distant from its intended beneficiaries.65 Due to the lack of proximity, there is a lack of understanding and, thus, alienation from the very communities it seeks to serve.66 A remote ICC will not be “informed by diverse perspectives” and will not be able to “promote post-conflict reconciliation or the rebuilding on the rule of law.”67 A solution to this problem would be to develop complementarity at the regional level, whereby courts are closer to the situation country and may understand the challenges faced by the region better.

However, when assessing this possibility, it is also important to analyze potential drawbacks, namely fragmentation of International Criminal Law.68 If there is conflict in the norms developed in Africa, for example, with those in the ICC, this would be undesirable especially for the development of a Universal International Criminal Justice system. The application of inconsistent interpretations to decisions adjudicating war crimes, crimes against humanity, genocide, crime of aggression, threaten unity. Without a high court, the decisions of any regional court, or at least of that court’s own appellate body, would be binding and not subject to review for uniformity.69 There is a major risk of having international crimes that are universal in nature lose their sense of universality and global condemnation as they come to have regional variation.

Therefore, while working with regional courts under the principle of complementarity might enable the OTP to reduce their workload, the involvement of the ICC at some stage of the process would be crucial to reduce potential harmful consequences of the regionalization of International Criminal Law.

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

  1. 1.

    Xavier Philippe, The Principles of Universal Jurisdiction and Complementarity: How Do the Two Principles Intermesh?, Int’l Rev. Red Cross (Jun. 2006), 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, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 17, available online.

  3. 3.

    Id. Art. 87(6).

  4. 4.

    Currency Union Technical Expert Group, Draft Follow-Up Paper #6, IMF, available online (last visited Aug. 29, 2023).

  5. 5.

    Id.

  6. 6.

    Michael Masutha, South Africa Minister of Justice, Speech on ICC and Sudanese President Omar Al Bashir (Oct. 21, 2016), available online.

  7. 7.

    Norimitsu Onishi, South Africa Reverses Withdrawal From International Criminal Court, N.Y. Times, Mar. 8, 2017, paywall.

  8. 8.

    Id.

  9. 9.

    Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Art. 28A (2014), available online

    (adopting an amendment protocol on Jun. 27, 2014 by The African Union Assembly to forge ahead with the establishment of an international criminal section in the proposed African Court of Justice and Human and Peoples’ Rights).

  10. 10.

    Id.

  11. 11.

    Charles Chernor Jalloh, The Place of the African Court of Justice and Human and Peoples’ Rights in the Prosecution of Serious Crimes in Africa, in The African Court of Justice and Human and Peoples’ Rights in Context: Developments and Challenges 57, 93 (Charles Chernor Jalloh, Kamari Maxine Clarke & Vincent Obisienunwo Orlu Nmehielle eds., Jul. 13, 2020), available online.

  12. 12.

    The Truth, Justice and Reconciliation Commission of Kenya, African Union Documents—Draft Decision on Africa’s Relationship with the ICC (Oct. 12, 2013), available online.

  13. 13.

    Fabrice Tambe Endoh, African Union and the Politics of Selective Prosecutions at the International Criminal Court, 2020 AJICJ 3, 31 (2020), available online, doi.

  14. 14.

    Jalloh, supra note 11, at 104.

  15. 15.

    Rome Statute, supra note 2, at Art. 53.

  16. 16.

    Charles Chernor Jalloh, The Place of the African Criminal Court in the Prosecution of Serious Crimes in Africa, in The International Criminal Court and Africa 318 (Charles Chernor Jalloh & Ilias Bantekas eds., 2017), paywall, doi.

  17. 17.

    Alexandra Valeria Huneeus, International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human Rights Courts, 107 Am. J. Int’l L. 1, 9 (Jan. 2013), available online.

  18. 18.

    Id.

  19. 19.

    Jalloh, supra note 11, at 98.

  20. 20.

    Id.

  21. 21.

    Luis Moreno-Ocampo, Unpublished Remarks to UCLA Law School Class Attended by Author (Nov. 16, 2022).

  22. 22.

    Rome Statute, supra note 2, at Art. 19.

  23. 23.

    Jalloh, supra note 11, at 61.

  24. 24.

    Michelle Nel, Can a Regional Court Be a Viable Alternative to the ICC in Africa?, The Conversation (Aug. 7, 2018), available online.

  25. 25.

    Sarah P. Nimigan, Exceptional or Exceptionalism? The Malabo Protocol and “Regional Complementarity”, 11 (Working Paper, 2017), available online.

  26. 26.

    Id.

  27. 27.

    Sasha Dominik Dov Bachmann & Eda Luke Nwibo, Pull and Push—Implementing the Complementarity Principle of the Rome Statute of the ICC within the African Union: Opportunities and Challenges, 43 Brook. J. Int’l L. 457, 466 (2018), available online.

  28. 28.

    Jalloh, supra note 11, at 97.

  29. 29.

    Id.

  30. 30.

    Jalloh, supra note 16, at 318.

  31. 31.

    Nimigan, supra note 25, at 4.

  32. 32.

    Kristen Rau, Jurisprudential Innovation or Accountability Avoidance? The International Criminal Court and Proposed Expansion of the African Court of Justice and Human Rights, 97 Minn. L. Rev. 669, 677 (Dec. 2012), available online.

  33. 33.

    Bing Bing Jia, The International Criminal Court’s Relations with the United Nations, ICC Forum (Jun. 28, 2018), available online.

  34. 34.

    Id.

  35. 35.

    Konstantinos D. Magliveras, Two Key Reforms: Break Up the ICC Into Regional Chambers and Allow the ICC to Impose Monetary Fines on Recalcitrant Contracting Parties, ICC Forum (Jul. 9, 2018), available online.

  36. 36.

    Id.

  37. 37.

    Id.

  38. 38.

    Id.

  39. 39.

    Jia, supra note 33.

  40. 40.

    Richard H. Steinberg, Private Conversation with Author (Dec. 5, 2022).

  41. 41.

    Id.

  42. 42.

    Tatiana E. Sainati, Divided We Fall: How the International Criminal Court Can Promote Compliance with International Law by Working with Regional Courts, 49 Vand. J. Transnat’l L. 191, 215 (Jan. 2016), available online.

  43. 43.

    Id. at 243.

  44. 44.

    Id. at 197.

  45. 45.

    Id. at 200.

  46. 46.

    Id. at 214.

  47. 47.

    Kaveri Vaid, What Counts as “State Action” Under Article 17 of the Rome Statute? Applying the ICC’s Complementarity Test to Non-Criminal Investigations by the United States into War Crimes in Afghanistan, 44 N.Y.U. J. Int’l L. & Pol. 573, 575 (2012), available online.

  48. 48.

    Id.

  49. 49.

    Id.

  50. 50.

    Miles Jackson, Regional Complementarity: The Rome Statute and Public International Law, 14 J. Int’l Crim. Just. 1061, 1061 (May 4, 2016), available online, doi.

  51. 51.

    Firew Kebede Tiba, Regional International Criminal Courts: An Idea Whose Time Has Come?, 17 Cardozo J. Conflict Resol. 521, 545 (Jan. 10, 2016), available online.

  52. 52.

    Id.

  53. 53.

    Mark D. Kielsgard & Ken Gee-kin Ip, Prioritizing Jurisdiction in the Competing Regimes of the International Criminal Court and the African Court of Justice and Human Rights: A Way Forward, 35 B.U. Int’l L.J. 285, 294 (Apr. 2017), available online.

  54. 54.

    Id.

  55. 55.

    Id.

  56. 56.

    Id. at 294–95.

    (Failure to comply with international tribunals established by the U.N. Security Council would violate U.N. Charter Article 41 and Chapter 7. No such priority is given to regional courts).

  57. 57.

    Id. at 295.

  58. 58.

    Id.

  59. 59.

    The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, ICC-02/04-01/05, Decision on the Admissibility of the Case Under Article 19(1) of the Statute, ¶ 45 (PTC II, Mar. 10, 2009), available online.

  60. 60.

    Kielsgard & Ip, supra note 53, at 295.

  61. 61.

    Steinberg, supra note 40.

  62. 62.

    Emily C. Barbour & Matthew C. Weed, Cong. Research Serv., R4116, The International Criminal Court: Jurisdiction, Extradition, and U.S. Policy 17–18 (Mar. 16, 2010), available online.

    (In 2009, the PNA lodged a declaration pursuant to Article 12(3) of the Rome Statute, accepting ICC ad hoc jurisdiction over alleged crimes committed in December 2008/2009 between Israeli and Hamas forces in the Gaza strip. The ICC’s jurisdiction would come from the PNA’s declaration since neither Israel nor the PNA are State Parties to the Rome Statute. The issue was that the PNA has not been recognized as a state which means it cannot confer jurisdiction).

    See also Should the ICC Investigate War Crimes in Gaza?, ICC Forum (Sep. 1, 2010), available online.

  63. 63.

    Steinberg, supra note 40.

  64. 64.

    Id.

  65. 65.

    Sainati, supra note 42, at 210.

  66. 66.

    Id.

  67. 67.

    Id.

  68. 68.

    Jalloh, supra note 11, at 105.

  69. 69.

    William W. Burke-White, Regionalization of International Criminal Law Enforcement: A Preliminary Exploration, 38 Tex. Int’l L.J. 729, 756 (Jul. 1, 2003), available online.

How Regional Organizations Can Support Complementarity: The Asian Development Bank and Judicial Reform

Introduction

The principle of complementarity requires institutional capacity at the national level to prosecute the crimes set forth by Article 5 of the Rome Statute (Article 5 Crimes). The International Criminal Court (ICC) was designed to be a court of last resort, not the only court. Of course, many States Parties to the Rome Statute lack the requisite institutional capacity to investigate and prosecute these crimes.1 While the ICC is not set up to build judicial capacity among states, perhaps help can come from another group: regional organizations. Regional organizations come in many forms, from international judicial bodies2 to development organizations.3 They often hold unique places in each region and have varying levels of regional influence. This comment explores the way that one regional organization, the Asian Development Bank (ADB), may help build regional judicial capacity to prosecute core international crimes and in turn strengthen complementarity in the Asia-Pacific region. I have chosen to focus on this region as it is underrepresented in the list of States Parties to the Rome Statute. Further, I have selected the ADB for a case study as its broad financial and diplomatic ties across the region may make it well-positioned to facilitate judicial capacity-strengthening programs.

Part I of this comment discusses in detail why the ADB is well-positioned to build judicial capacity for prosecuting core international crimes in Asia-Pacific states. This Part focuses on the ADB’s ties to its member states and its existing judicial reform efforts under its Law and Policy Reform Program. Part II explores how the ADB would implement a judicial reform program among its member states. As an example, this part draws on ADB’s ongoing judicial reform project among Pacific states aimed at increasing judicial capacity in those states to prosecute crimes involving gender-based violence. Part III identifies challenges the ADB would face in implementing this work. This section analyzes how the ADB’s relationships with Japan, the United States, and China would affect a judicial reform project. I also address the challenges facing internal stakeholders in justifying this work within the economic mission of the ADB. I find that the ADB has a strong existing framework to implement a judicial reform effort aimed at building capacity to prosecute core international crimes but will likely need to overcome internal rather than external political obstacles.

I. Why the ADB is Well-Positioned to Build Regional Prosecutorial Capacity

The ADB was established in 1966. The organization was born from a recognition among Asian leaders that regional economic cooperation and financing would facilitate development in the Asia-Pacific region.4 Today, the ADB has sixty-eight member states—forty-nine from within the Asia-Pacific region.5 Of those forty-nine regional members, nineteen are also States Parties to the Rome Statute.6

At its core, the ADB is an economic institution seeking a “prosperous, inclusive, resilient, and sustainable Asia and the Pacific.”7 But while its ends are ultimately economic, its means are varied. As part of its development strategy, the ADB seeks judicial reform among its member states. The ADB accomplishes this work largely through its Office of the General Counsel (OGC) and its Law and Policy Reform Program (LPR program).8 While the LPR program has been justified in various ways over the years,9 it represents an institutional understanding that building rule of law is a key component of the development process. Recent examples of this work include the ADB’s efforts to strengthen judicial capacity in Mongolia.10 The goal of that work was to provide technical assistance to “Mongolia criminal court judges to render informed decisions on court cases involving economic crimes.”11 Another example is the ADB’s work with judges and prosecutors in Afghanistan. There, the ADB partnered with the Supreme Court of Afghanistan and the Attorney General’s Office to train 140 judges and prosecutors “on laws specific to gender sensitization, access to justice, and violence against women.”12 While the OGC stopped publishing annual reports of its LPR program, a survey of the ADB’s efforts in this area from 1990 to 2007 found that by 2007, the ADB managed over four hundred “regional, advisory, and small-scale technical assistance projects in judicial and legal reform with a total value estimated at USD 420 million.”13

In the mid-2000s, the ADB sought to measure the success of these projects. The results were mixed.14 This may explain why the ADB apparently deprioritized the LPR program, shifting resources elsewhere.15 But the ADB has not given up on judicial reform or the LPR program entirely. The projects in Mongolia and Afghanistan mentioned above are evidence of this fact. Further support comes from the ADB’s 2030 strate