Article 17 fleshes out the jurisdictional question by requiring the Court to rule a case inadmissible in four situations.

Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) 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; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court.8

The first three situations are of greatest import when determining whether a case is inadmissible on complementarity grounds, gravity is a separate requirement. Essentially, if a state is or has engaged in proceedings against an individual, and those proceedings are or were genuine, the case is inadmissible before the ICC.

When the Prosecutor decides to open an investigation under article 15 she is obligated by article 18 to “notify all States Parties and those States which…would normally exercise jurisdiction over the crimes concerned.”9 After receiving notification, within one month, a state “may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts…which relate to the information provided in the notification”.10 To date, no state has challenged the opening of an investigation. Were a state to do so, the prosecutor would be required to “defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.”11 While no state has yet invoked article 18 to forestall an investigation, it is another tool available for advancing the aims of complementarity. With the ICC operating to complement national jurisdictions, article 18 allows a state to assert their jurisdiction before any warrants have issued or accused been identified.12

The state’s assertion and the Pre-Trial Chamber’s ruling do not end the matter, there is the possibility of expedited appeal to the Appeals Chamber,13 periodic review by the Prosecutor,14 and the ability to “request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions.”15 With additional ability to monitor the situation after an article 18 invocation, the Prosecutor would be in a better position to assess the admissibility of the cases being brought in national proceedings.

After an investigation is opened and a case is brought, article 19 allows the Court itself to determine admissibility.16 Challenges to admissibility at this stage may be brought by the accused or the state which has jurisdiction.17 Challenges by both the accused and the state have occurred and the seminal cases governing admissibility before the court on complementarity grounds are discussed below.

Regarding the overall structure of the admissibility test in article 17, in The Prosecutor v. Katanga the Appeals Chamber interpreted article 17(1)(a) and (b) to require a two-part test. The first part assesses whether or not there are “ongoing investigations or prosecutions, or…whether there have been investigations in the past, and the State having jurisdictions has decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to…examine the question of unwillingness and inability.”18 The defendant, Germain Katanga, had argued that the Democratic Republic of the Congo’s (“DRC”) decision not to investigate him for certain conduct and instead turn him over to the ICC demonstrated their unwillingness to prosecute; unwillingness which should be examined under article 17(2)’s test for unwillingness.19 The Appeals Chamber determined that there were no ongoing investigations or prosecutions, that there was no decision not to prosecute following an investigation, and therefore that the question of unwillingness need not be reached.20 In fact, the DRC’s decision to close their investigation into Mr. Katanga was made in order to facilitate his transfer to the Court for the Court to exercise its jurisdiction.21 The Appeals Chamber affirmed that the case was admissible before the ICC because none of the requirements of article 17(1) were met.22

Regarding the scope of the case under investigation in the national proceedings, in The Prosecutor v. Gaddafi the Appeals Chamber applied a test they had establish in The Prosecutor v. Ruto to determine whether or not the domestic Libyan investigation covered the same case as that being brought by the ICC Prosecutor. “[t]he national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court.”23 “What is required is a judicial assessment of whether the case that the State is investigating sufficiently mirrors the one that the Prosecutor is investigating.”24 The Pre-Trial Chamber had ruled that in the Gaddafi case, Libya had not given enough information for them to determine what conduct the national investigation was actually investigating.25

A state may be considered unwilling for article 17 purposes if “proceedings were or are being undertaken…for the purpose of shielding the person concerned from criminal responsibility.”26 Unwillingness could also be found if there is “an unjustified delay inconsistent with an intent to bring the person concerned to justice.”27 Finally, unwillingness may also be found if “[t]he proceedings were not or are not being conducted independently or impartially, and…in a manner which…is inconsistent with an intent to bring the person concerned to justice.”28 In The Prosecutor v. Al-Senussi, with regard to the same case test, the Appeals Chamber affirmed the Pre-Trial Chamber.29 The Pre-Trial Chamber had determined that the Libyan investigation covered the same events underlying the charges brought by the ICC Prosecutor.30 The Appeals Chamber found that the defendant’s lack of counsel during the investigatory phase of the domestic proceedings did not demonstrate unwillingness because the question is not whether human rights law and domestic law are respected, but rather whether the deprivation was so egregious as “to be inconsistent with an intent to bring [Mr. Al-Senussi] to justice.”31 The Appeals Chamber noted that article 17(2)(a)’s reference to shielding the accused from criminal responsibility suggests that the other two sub-paragraphs of article 17(2) are not to guarantee a fair trial, but to put an end to impunity.32 Lack of counsel by itself, then, does not demonstrate that a state is unwilling to genuinely carry out an investigation.

Article 17(3) deals with the inability prong, stating that ‘the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.”33 This issue was confronted in Al-Senussi where the Appeals Chamber found that the government had custody of the accused by controlling his detention facility.34 The Appeals Chamber also affirmed the Pre-Trial Chamber’s decision that despite a poor security situation for the judicial system at large, “the proceedings in Mr. Al-Senussi’s case had not so far been prejudiced by security challenges”.35 the Appeals Chamber’s decision in this case had the effect of confirming the Pre-Trial Chamber’s decision that the case against Al-Senussi was inadmissible before the ICC.36

Complementarity under the ICC system appears when the OTP considers admissibility during a preliminary examination and before opening an investigation. Complementarity may also play a role in an article 18 challenge by a state with jurisdiction to the decision by the ICC to open an investigation. The decisions on whether or not to open an investigation and the article 18 challenges concern the likely charges based on the information available at the time. After the investigation is opened, a case may be brought. At this stage, the state having jurisdiction or the individual accused may challenge the admissibility of the case before the ICC. A case is inadmissible at this stage when the same case is under investigation, prosecution, or been previously prosecuted by a state with jurisdiction. Those investigations, prosecutions, decisions not to prosecute, or prior prosecutions do not render the case inadmissible if the state was unable or unwilling genuinely to prosecute. The Court’s complementarity jurisprudence continues to develop, with some areas as yet unexplored.37 Complementarity underlies the ICC system, above is a summary of the legal rules surrounding how complementarity functions in practice, the next section discusses why a complementary ICC is desirable.

B. The Desirability of a Complementary Court

The ICC complements national jurisdictions and there are good reasons for this. A complementarity regime respects state sovereignty. The ICC’s limited resources make it impossible for the Court to hear cases of every alleged perpetrator of an international crime so national jurisdictions have a role to play in ending impunity. National jurisdictions may be better situated to investigate and prosecute perpetrators in their own states. Following a period of armed conflict or civil strife, national proceedings may be better at restoring faith in domestic institutions among the local population than proceedings in The Hague. Complementarity does have some drawbacks, but the benefits of local proceedings often outweigh them and the court can take some actions to mitigate them.

As a treaty regime, the Rome Statute system relies on voluntary accession to the treaty with limited circumstances where the Court can operate outside the geographic and national limits of the states parties.38 States thus give up some sovereignty when they agree to be a party to the Rome Statute. States give up less sovereignty to a complementary court than they would to a court with primary jurisdiction. Under the Rome Statue system, the states have primary jurisdiction and cases are inadmissible before the court when article 17’s requirements are met.39 The state, therefore, has the ability to preempt the Court by investigating a situation or bringing a case domestically. For states which value their sovereignty, the complementarity of the Court to the national jurisdiction may encourage signing the Rome Statute and accepting the Court’s jurisdiction, such as it is.40 “The greater the number of states parties, the more legitimacy the ICC will have, which, in turn, allows the Court to contribute more to accountability for international crimes globally.”41 There are currently 124 states parties to the Rome Statute.42 By respecting national sovereignty and allowing for domestic prosecutions, the Court can encourage more states to join and further increase the Court’s legitimacy.

The Court also has limited resources at its disposal. Complementarity extends the reach of international criminal law by enabling domestic jurisdictions to hold perpetrators of international crimes accountable. The gravity requirement in article 17 suggests a threshold of harm below which the Court will not prosecute.43 International criminal courts have traditionally been designed to prosecute those most responsible for serious crimes, but there will often be people with some responsibility for international crimes who do not qualify as most responsible.44 This is not to say that those less responsible should not be prosecuted, but that there should be additional fora available to try those who are not the most responsible but still bear criminal responsibility.45

In some situations, the national jurisdiction may be better situated to prosecute.46 Domestic trials work in the same language as the witnesses, evidence from crime scenes is more readily to hand and the local population is better able to attend a proceeding held locally than one held in The Hague.47 The better accessibility of domestic proceedings may also lead to cost savings in both time and money favoring domestic proceedings over international ones.

With proceedings closer to home, not only are the problems of language barriers and access to evidence mitigated, but it may be possible to restore some faith in local courts among the local population. ICC crimes are often committed during armed conflict and even when they are not, they are considered the “most serious crimes.”48 In armed conflicts and periods of civil strife, institutions can break down and one of the goals of the ICC is to promote peace and stability in the world.49 Empowering local institutions can help to restore their legitimacy in the eyes of local populations affected by international crimes.50

Article 18 envisions a state party or any state challenging the Prosecutor’s decision to open an investigation on the grounds that they are already investigating the acts in question.51 Article 19 covers challenges to the admissibility of a case and also envisions a challenge by a state.52 In these situations, where a state is challenging a decision by the Prosecutor, the state is at odds with the ICC.53 The tension between states parties and the ICC has recently come to a head when Burundi, South Africa, and Gambia announced their decisions to withdraw from the Rome Statute over a perceived bias towards prosecuting Africans.54 Moreover, complementarity ensures that the ICC will intervene most often in states with poorly developed legal systems since those states are more likely to be “unable genuinely to carry out the investigation or prosecution.”55 The disparity between intervention in states with poorly developed legal systems and more advanced, usually Western, states undermines the Court’s legitimacy and may result in more states parties withdrawing from the Rome Statute.

The other problem with complementarity is that, taken to the extreme, it results in no cases before the Court. If every state is carrying out genuine domestic proceedings against those accused of international crimes, then the Court’s work will simply be to monitor domestic proceedings and comment on the national jurisdictions willingness and ability to prosecute. The Court’s inaction may be seen as a weakness when compared to more active international courts such as the ICTY and ICTR, despite such a situation being fully in compliance with the Rome Statute and the Court’s mandate.56 Inaction may also appear undesirable for the Court itself. While complementarity and respect for national proceedings may lead more states to sign the Rome Statute and accept the jurisdiction of the Court, a model where the Court remains essentially inactive may undermine the legitimacy that widespread acceptance would garner.57 Robust domestic proceedings are desirable but they do come at some cost to the ICC as an institution.

Complementarity is central to the structure of the Rome Statute system where states parties are the primary actors in bringing perpetrators of international crimes to justice. Only when those domestic proceedings are impossible or not genuine should the ICC intervene. Complementarity comes at some cost to the ICC’s legitimacy but respects national proceedings, acknowledges resource constraints, and enables more individuals accused of international crimes to be investigated and tried.

III. Challenges in Measuring Complementarity

To date there have been three detailed studies of criminal prosecutions for human rights violations, all three have focused on countries undergoing democratic transition. The first, the Transitional Justice Data Base Project has been working since 2005 and has gathered data on trials, truth commissions, amnesties, reparations, and lustration policies from 1970 to 2007.58 The database was coded for the type of mechanism used, the level of the mechanism (domestic, international, or hybrid), and the target of the mechanism (state and non-state agents).59 They found that from 1970 to 2007 that there were 258 domestic prosecutions for numerous transitional justice related crimes including coup attempts, genocide, war crimes, crimes against humanity, and support for terrorism.60 The project used data from Keesing’s World News Archive, was led by three scholars, supported by 24 research assistants and received funding from a number of sources.61 The second was the Human Rights Prosecutions Data Base which used the U.S. State Department’s Country Report on Human Rights Practices to determine that from 1974 to 2006 there were 1,120 country-years with trial activity for human rights violations.62

The most recent effort at cataloging transitional justice events generally as well as criminal trials specifically is the ongoing work of the Transitional Justice Research Collaborative. Their work, beginning in 2010, has covered human rights prosecutions, truth commissions, and amnesty laws.63 In addition, they have been gathering data on civil trials, vetting and lustration, reparations, and traditional justice mechanisms since 2012.64 Using U.S. State Department Human Rights Reports, Keesing’s Record of World Events, and Tricia D. Olsen et al.’s Transitional Justice in Balance they compiled a list of 7,523 individuals tried in 4,686 trials in 153 states.65 They then performed additional research into each instance to develop the details of the case.66 Employing 51 different researchers from 2010 to the present, they have been able to build a searchable database of human rights trials and the other transitional justice mechanisms from 1970 to the present.67 Despite the extent and usefulness of the Collaborative’s work, they acknowledge that it is not a complete record. “[D]espite these large numbers, we cannot know how many cases we have overlooked, or how much retrievable information is missing from the records. This is not necessarily a problem specific to our data, but a problem with all event history data.”68 While the work of all of these projects is extremely useful in understanding democratic transition, something which often intersects with the work of the ICC, the data is difficult to gather and necessarily not comprehensive. Moreover, it does not map perfectly onto the work of the ICC as it is gathered and used for many other purposes as well.69

Any effort at gathering data on domestic prosecutions for crimes which could be within the domain of the ICC will face a number of challenges. Detailed research into each individual case, as the three projects above illustrate, can mitigate those challenges but also increase the cost of the effort. Challenges include the tapestry of different implementing legislation, charging decisions by prosecutors, and the difficulty of determining what qualifies as a prosecution for one of the core crimes across different jurisdictions and types of legal systems.70 70 states have national ICC implementation legislation.71 Any domestic prosecution under such legislation would easily signal to the world at large and to the ICC in particular that states are undertaking domestic prosecutions for the ICC’s core crimes. The Genocide Convention requires contracting parties to that instrument “to enact, in accordance with their respective Constitutions, the necessary legislation…to provide effective penalties for persons guilty of genocide.”72 Any state prosecuting persons for genocide under their domestic implementing legislation will likewise signal to the international community and the ICC that they are prosecuting individuals for genocide. There are also states which have incorporated references to international law in their domestic criminal code without using specific treaties.73 Much as the above situations, any prosecution under such a provision, depending on the specific case, may signal a domestic prosecution for an international crime. More problematic are states which criminalize international crimes using their existing criminal and military codes.74 Under such a system, it may be difficult for an outside observer to determine whether a state is in fact prosecuting for a genocide, crime against humanity, or war crime because it is not labeled as such.75 Regardless of whether a state has laws on the books for international crimes, prosecutorial discretion allows for a determination of which charges to bring. A charge for conduct which may constitute war crimes in a jurisdiction which has war crimes legislation may be brought as a simple criminal case or a case under military law.76 The different ways of charging conduct which overlaps with the ICC’s jurisdiction makes it difficult to determine which prosecutions implicate complementarity and which do not.

Currently, the ICC Office of the Prosecutor (“OTP”) does collect data on domestic legal proceedings as part of preliminary examinations when such information is available.77 At the preliminary examination stage, the OTP does not have the power to demand cooperation from the situation state but can still request information.78 The four situations currently under preliminary examination and in the process of deciding admissibility are Afghanistan, Colombia, Guinea, and Nigeria.79

In Afghanistan, the OTP is examining alleged war crimes committed by the Taliban, the Haqqani Network, the Afghan government and U.S. forces as well as crimes against humanity by the Taliban and the Haqqani Network.80 The OTP found that two members of forces opposed to the Afghan government had been tried and convicted, though they could not determine what the underlying conduct or charges were due to the Afghan government having not yet provided further information.81 The situation is also complicated by a general amnesty which shields a number of opposition groups from prosecution.82 The OTP found that a third to half of conflict-related detainees in Afghan government custody had suffered ill-treatment and two people had been prosecuted for alleged abuses.83 Using information provided to the Committee Against Torture, and public statements by the US Department of Justice, the OTP determined that seven individuals had been subject to court martial for ill-treatment in Afghanistan and a two year DOJ investigation into ill-treatment yielded decisions not to prosecute due to insufficiency of evidence.84 The information on which the OTP relied in coming to these conclusions about potential cases in Afghanistan was open source; in fact, the Afghan government was apparently not forthcoming when the OTP requested information about proceedings in its jurisdiction.85

In Colombia, the preliminary examination concerns crimes against humanity and war crimes committed in the context of the non-international armed conflict between the government and various rebel groups.86 The OTP determined, based on information submitted by the Colombian government, that Colombian courts had convicted 961 members of the armed forces for extrajudicial killings.87 There were also ongoing investigations into 2,241 additional cases.88 Included were a number of officers at different levels as well as commanding officers.89 43 individuals were convicted of forced displacement,90 and one paramilitary leader was convicted as an indirect perpetrator for various sexual and gender based crimes.91

The OTP is examining the situation in Nigeria where they have identified eight cases of war crimes and crimes against humanity, “six for conduct by Boko Haram and two for conduct by the Nigerian security forces.”92 The government has provided investigative files and reports to the OTP, but the OTP has not yet assessed the admissibility of those cases.93 The Nigerian situation presents one of the problems identified above, namely the lack of any implementing legislation for the Rome Statute.94 Any charges brought against Boko Haram members would have to be brought under Nigerian terrorism legislation95 and charges against security forces members would have to be charged under military codes.96

In Guinea, on September 28, 2009, members of the Guinean presidential guard and gendarmerie entered a stadium in Conakry and opened fire on a protesting crowd, “at least 156 people were killed or disappeared and at least 109 were victims of rape and other forms of sexual violence”.97 In October 2009, the Prosecutor opened a preliminary examination into, inter alia, torture, killings, disappearances, and sexual violence as crimes against humanity.98 In February 2010, the Guinean government launched an investigation into the events.99 14 people have been indicted, including high government officials and a former head of state; trials are expected to begin in early 2017.100

These four situations remain under preliminary examination and they have varying levels of government action and cooperation with the OTP. They also demonstrate the difficulties of discovering domestic proceedings in some states, as well as determining how domestic criminal codes map onto the crimes within the ICC’s jurisdiction. Private actors can assemble databases of domestic proceedings for what may be international crimes at some effort and expense. The Court has tools available to gather open source information as well as the ability to request information from states under preliminary examination. While the states under preliminary examination are not obligated to cooperate with the ICC,101 some have done so as demonstrated by the situations in Colombia, Nigeria, and Guinea. Data on complementarity are available widely and additional data are available to the Court upon request. There are challenges in collecting the information but the Court is well-situated to do so and complementarity should be considered as one of the measures of the ICC’s effectiveness.

IV. Recommendation

A key measure of the ICC’s effectiveness should be the extent to which it encourages domestic prosecutions for the core crimes. As far as increasing complementarity, this can be done through capacity building, hybrid tribunals, establishing an institute, and other methods of so-called “positive complementarity.”102 When it comes to measuring complementarity, the solution is less active and less resource intensive. As discussed above, the academic studies into transitional justice are the best tools currently available to determine whether or not national jurisdictions are prosecuting individuals involved in the commission of the ICC’s core crimes. As useful as these data are for multitudes of academic questions, the question of measuring the effectiveness of the ICC’s leadership and management through the lens of complementarity is a narrower issue.

As shown in the discussion of the four situations in the admissibility phase of the preliminary examination, the Court is currently gathering information on domestic efforts to prosecute perpetrators of international crimes. Those domestic efforts should be one of the measures of the Court’s effectiveness.103 One of the traditional measures of a court’s success is how many cases it can try.104 Given how the Court is situated within the Rome Statue system, cases tried is not a complete measure of the Court’s effectiveness.105 “This combination of unrealistic hopes and limited capacity raises the real prospect that the Court will be seen as a failure only a few years after its creation.”106

The Court’s success should not only be measured by cases it tries, but by the cases it does not.107 A situation where the Prosecutor decides not to open an investigation based on complementarity is a success for the Court and for international justice. An investigation successfully challenged by a state under article 18 is a success for the Court. When a state or an individual challenges the admissibility of a case under article 19 on complementarity grounds and succeeds, the goal of ending impunity for the perpetrators of the most serious crimes is advanced. At this early stage, the only data are of article 19 challenges since no states have invoked article 18 and no preliminary examination has ended based on complementarity. As decisions not to investigate on complementarity grounds and article 18 challenges emerge, they should be recorded and publicized as examples of the Court working effectively. Decisions that cases are inadmissible after a successful article 19 challenge should likewise be lauded as successes for the Court and measured as such.

Though they are still under preliminary examination, the judicial actions by the national authorities following the events in Guinea and Colombia should serve as encouraging developments for the Court. The fact that Colombia has tried thousands of individuals for crimes related to a preliminary examination and that Guinea anticipates a bringing a criminal case in early 2017 are data points that serve to demonstrate the ICC’s effectiveness. It may be difficult to disentangle whether the Court is the driving force behind domestic proceedings, but domestic proceedings are an indicator of whether the Court is effective or not.108 The Court has information at its disposal to determine when a situation, investigation, or case does not go forward due to complementarity. This information should serve as a measure of the Court’s effectiveness as proceedings move forward.

V. Conclusion

Complementarity goes to the heart of the Rome Statute system. States parties are actors within that system and are the primary actors in bringing those accused of the ICC’s core crimes to justice. While the traditional measure of a successful court is the volume of cases which it can conclude, the ICC’s complementary status renders that measure less useful. The Court’s effectiveness can be measured by the cases that it does not bring because a state is already bringing them. At this stage in the Court’s history, there are several complementarity avenues which have not yet been tested. When they are, and when they result in a case being investigated and prosecuted at the national level in lieu of in the ICC, those cases should serve as a measure of the Court’s effectiveness and success in ending impunity and bringing those most responsible for international crimes to justice.

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

1. 1.

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

2. 2.

   Id. art. 1. ↩

3. 3.

   Id. art. 53(1). ↩

4. 4.

   Id. art. 53(1)(b). ↩

5. 5.

   Office of the Prosecutor, International Criminal Court, Policy Paper on Preliminary Examinations ¶ 44 (Nov. 2013), available online, archived. ↩

6. 6.

   Id. ↩

7. 7.

   Rome Statute, supra note 1, art. 19(2). ↩

8. 8.

   Id. art. 17(1); Id. art. 20(3) deals with ne bis in idem or double jeopardy. ↩

9. 9.

   Id. art. 18(1); see also David Scheffer, Maximizing Opportunities to Deter Further Atrocity Crimes, in Contemporary Issues Facing the International Criminal Court 220, 222–224 (Richard H. Steinberg ed., 2016), earlier version (Oct. 6, 2011) available online.

   (calling for the Prosecutor to notify states of the opening of an investigation in a way that encourages them to open domestic proceedings into the situation). ↩

10. 10.

    Rome Statute, supra note 1, art. 18(2). ↩

11. 11.

    Id. ↩

12. 12.

    See Scheffer, supra note 9, at 222. ↩

13. 13.

    Rome Statute, supra note 1, art. 18(4). ↩

14. 14.

    Id. art. 18(3). ↩

15. 15.

    Id. art. 18(5). ↩

16. 16.

    Id. art. 19(1). ↩

17. 17.

    Id. art. 19(2). ↩

18. 18.

    The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04–01/07 OA 8, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ¶ 78 (Sep. 25, 2009), available online [hereinafter Prosecutor v. Katanga]; see also Paul Seils, Handbook on Complementarity: An Introduction to the Role of National Court and the ICC in Prosecuting International Crimes, 42–44 (ICTJ, 2009), available online. ↩

19. 19.

    The Prosecutor v. Katanga, supra note 18, ¶ 62. ↩

20. 20.

    Id. ¶¶ 80–82. ↩

21. 21.

    Id. ¶ 80. ↩

22. 22.

    Id. ¶ 116. ↩

23. 23.

    In the Case of the Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11–01/11 OA 4, Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi,” ¶ 60 (May 21, 2014), available online. ↩

24. 24.

    Id. ¶ 73. ↩

25. 25.

    Id. ¶ 86. ↩

26. 26.

    Rome Statute, supra note 1, art. 17(2)(a). ↩

27. 27.

    Id. art. 17(2)(b). ↩

28. 28.

    Id. art. 17(2)(c). ↩

29. 29.

    In the Case of the Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11–01/11 OA 6, Judgment on the appeal of Mr. Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled “Decision on the admissibility of the case against Abdullah Al-Senussi,” ¶ 94 (Jul. 24, 2014), available online. ↩

30. 30.

    Id. ¶ 86. ↩

31. 31.

    Id. ¶ 190. ↩

32. 32.

    Id. ¶¶ 217–218. ↩

33. 33.

    Rome Statute, supra note 1, art. 17(3). ↩

34. 34.

    The Prosecutor v. Al-Senussi, supra note 29, ¶ 274. ↩

35. 35.

    Id. ¶¶ 282, 287. ↩

36. 36.

    Press Release, ICC, ICC Pre-Trial Chamber I Decides that the Al-Senussi Case is to Proceed in Libya and is Inadmissible Before the ICC (Oct. 11, 2013), available online. ↩

37. 37.

    There has yet to be a challenge based on article 18; also, the Prosecutor has yet to decide to close a preliminary examination without opening an investigation based on complementarity issues. ↩

38. 38.

    Seils, supra note 18, at 7. Rome Statute, supra note 1, art. 12(3).

    (allowing a state not a party to the Rome Statute to accept the jurisdiction of the Court for limited circumstances without becoming a state party);

    Rome Statute, supra note 1, art. 13(b).

    (allowing the Court to exercise jurisdiction with respect to a situation “referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations”). ↩

39. 39.

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

40. 40.

    Linda E. Carter, The Future of the International Criminal Court: Complementarity as a Strength or a Weakness?, 12 Wash. U. Global Stud. L. Rev. 451, 459 (2013), available online. ↩

41. 41.

    Id. ↩

42. 42.

    Coalition for the International Criminal Court, available online (last visited Dec. 12, 2016). ↩

43. 43.

    Rome Statute, supra note 1, art. 17(1)(d). ↩

44. 44.

    Id. pmbl.; Carter, supra note 40, at 459. ↩

45. 45.

    Carter, supra note 40, at 460. ↩

46. 46.

    Seils, supra note 18, at 8. ↩

47. 47.

    Id. ↩

48. 48.

    Rome Statute, supra note 1, pmbl. ↩

49. 49.

    Id. ↩

50. 50.

    Seils, supra note 18, at 8. ↩

51. 51.

    Rome Statute, supra note 1, art. 18(2). ↩

52. 52.

    Id. art. 19(2)(b)-(c). ↩

53. 53.

    Carter, supra note 40, at 457. ↩

54. 54.

    Abraham Joseph, Why Did South Africa, Burundi, and Gambia Decide to Leave the International Criminal Court?, The Wire, Nov. 1, 2016, available online. ↩

55. 55.

    Carter, supra note 40, at 458; Rome Statute, supra note 1, art. 17(1)(a). ↩

56. 56.

    Carter, supra note 40, at 455. ↩

57. 57.

    Id.; Payam Akhavan, The Rise, and Fall, and Rise, of International Criminal Justice, 11 J. Int’l Crim. Just. 527, 532 (Jul. 2013), Oxford Academic paywall, EBSCO Host paywall. ↩

58. 58.

    Leigh A. Payne et al., Transitional Justice Data Base Project (2010), available online (last visited Dec. 6, 2016). ↩

59. 59.

    Leigh A. Payne et al., Data, Transitional Just. Data Base Proj., available online (last visited Dec. 6, 2016).

    (Click on “Data” at top of page). ↩

60. 60.

    Id.

    (search for “Mech. Type: Trial”; “Mech. Level: Domestic”; “Target: Non-State and State Agents”; “Dates: From year 1970 to year 2007”). ↩

61. 61.

    Payne et al., supra note 58. ↩

62. 62.

    Kathryn Sikkink, Leigh A. Payne, Geoff Dancy & Bridget Marchesi, Human Rights Prosecutions Coding Manual 3 (Transitional Just. Research Collaborative, rev. Jan. 2014), available online. ↩

63. 63.

    About, Transitional Just. Research Collaborative, available online (last visited Dec. 6, 2016). ↩

64. 64.

    Id. ↩

65. 65.

    Frequently Asked Questions, Transitional Just. Research Collaborative, available online (last visited Dec. 6, 2016). ↩

66. 66.

    Id. ↩

67. 67.

    Browse Records, Transitional Just. Research Collaborative, available online (last visited Dec. 6, 2016); People, Transitional Just. Research Collaborative, available online (last visited Dec. 6, 2016). ↩

68. 68.

    Frequently Asked Questions, supra note 65. ↩

69. 69.

    Findings, Transitional Just. Research Collaborative, available online (last visited Dec. 6, 2016); see also Geoff Dancy & Florencia Montal, Unintended Positive Complementarity: Why International Criminal Court Investigations Increase Domestic Human Rights Prosecutions, Am. J. Int’l L. (forthcoming 2017), SSRN paywall. Earlier version (Jan. 20, 2015), available online, archived.

    (using transitional justice data from DRC, Uganda, Central African Republic, Kenya, Côte D’Ivoire, and Sudan to show that the ICC’s opening of an investigation in a situation state increases the rate of domestic prosecutions and convictions for human rights violations). ↩

70. 70.

    Philipp Kastner, Domestic War Crimes Trials: Only for “Others”? Bridging National and International Criminal Law, 39 UWA L. Rev. 29, 34 (2015), available online, archived. ↩

71. 71.

    Coalition For The International Criminal Court, supra note 42. ↩

72. 72.

    Convention on the Prevention and Punishment of the Crime of Genocide, art. V, Dec. 9 1948, S. Exec. Doc. O, 81-1 (1949), 78 U.N.T.S. 277 , available online. ↩

73. 73.

    Kastner, supra note 70, at 34. ↩

74. 74.

    Id. ↩

75. 75.

    Carter, supra note 40, at 461 n.42. ↩

76. 76.

    Kastner, supra note 70, at 35–36.

    (discussing American proceedings surrounding the massacre at My Lai and proceedings regarding prisoner abuse at Abu Ghraib, an Australian case involving the killing of Afghan civilians, and a Canadian case involving an officer killing an enemy fighter who had been rendered hors de combat; in each instance there were war crimes statutes available but the cases were handled through the respective military justice systems). ↩

77. 77.

    Policy Paper on Preliminary Examinations, supra note 5, ¶ 31. ↩

78. 78.

    Id. ↩

79. 79.

    Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities 2016 (Nov. 14, 2016), available online, archived; three preliminary examinations have closed with a decision not to initiate an investigation, these are Venezuela, South Korea, and Honduras. Not one of those decisions was based on Article 17 admissibility issues. Preliminary Examinations, ICC, available online (last visited Dec. 6, 2016). ↩

80. 80.

    Report on Preliminary Examination Activities 2016, supra note 79, ¶ 198. ↩

81. 81.

    Id. ¶ 217. ↩

82. 82.

    Id. ↩

83. 83.

    Id. ↩

84. 84.

    Id. ¶¶ 220–221. ↩

85. 85.

    Id. ¶ 217. ↩

86. 86.

    Id. ¶ 232. ↩

87. 87.

    Id. ¶ 243. ↩

88. 88.

    Id. ↩

89. 89.

    Id. ¶¶ 243–244. ↩

90. 90.

    Id. ¶ 245. ↩

91. 91.

    Id. ¶ 249. ↩

92. 92.

    Id. ¶ 286. ↩

93. 93.

    Id. ¶ 301. ↩

94. 94.

    Id. ¶ 299. ↩

95. 95.

    Id. ¶ 299. ↩

96. 96.

    Id. ¶ 300. ↩

97. 97.

    Id. ¶ 267; Corinne Dufka, Peter Bouckaert, Aloys Habimana & Matthew Wells, HRW, Bloody Monday: The September 28 Massacre and Rapes by Security Forces in Guinea (Dec. 17, 2009), available online.

    (providing a detailed account of the events at the Stadium on September 28, 2009 and the international and domestic response in the following weeks). ↩

98. 98.

    Report on Preliminary Examination Activities 2016, supra note 79, ¶ 264. ↩

99. 99.

    Id. ¶ 271. ↩

100. 100.

     Id. ¶¶ 273–274. ↩

101. 101.

     Rome Statute, supra note 1, art. 86.

     (states parties are obligated to cooperate with the Court in investigation and prosecution). ↩

102. 102.

     Carter, supra note 40, at 469–470; see also William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53, 54 (2008), available online.

     (arguing for proactive complementarity where the ICC would directly assist and “encourage national governments to prosecute international crimes themselves.”) ↩

103. 103.

     Akhavan, supra note 57, at 532.

     (“success should be measured in terms of dialogue with, and empowerment of, national jurisdictions, wherever this may be possible.”) ↩

104. 104.

     Carter, supra note 40, at 462. ↩

105. 105.

     Burke-White, supra note 102, at 54. ↩

106. 106.

     Id. ↩

107. 107.

     Carter, supra note 40, at 464. ↩

108. 108.

     William W. Burke-White, Maximizing the ICC’s Crime Prevention Impact Through Positive Complementarity and Hard-Nosed Diplomacy, in Contemporary Issues Facing the International Criminal Court 202, 212 (Richard H. Steinberg ed., 2016), earlier version (Oct. 6, 2011) available online. ↩