I. Complementarity Aligns with the Objectives of the ICC

A. The ICC and the Objectives of International Criminal Law

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

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

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

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

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

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

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

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

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

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

B. Complementarity and the Objectives of International Criminal Law

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

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

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

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

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

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

II. How Complementarity will Advance the ICC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. What Complementarity Should Look Like

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

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

1. facilitation of training programs;

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

3. publications.37

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

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

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

Conclusion

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

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

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

1. 1.

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

2. 2.

   Id. at 26–27. ↩

3. 3.

   Id. at 28–29. ↩

4. 4.

   Id. at 29–30. ↩

5. 5.

   Id. at 30–31. ↩

6. 6.

   Id. at 33–34. ↩

7. 7.

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

8. 8.

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

9. 9.

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

10. 10.

    Id. ↩

11. 11.

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

12. 12.

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

13. 13.

    Burke-White, supra note 11, at 74. ↩

14. 14.

    Id. at 75. ↩

15. 15.

    Almqvist, supra note 12. ↩

16. 16.

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

17. 17.

    Id. at 68–69. ↩

18. 18.

    Id. ↩

19. 19.

    Id. 74–75. ↩

20. 20.

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

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

21. 21.

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

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

22. 22.

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

23. 23.

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

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

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

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

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

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

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

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

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

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

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

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

24. 24.

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

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

25. 25.

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

26. 26.

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

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

27. 27.

    About the ICTY, supra note 26. ↩

28. 28.

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

29. 29.

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

30. 30.

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

31. 31.

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

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

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

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

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

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

32. 32.

    Id. at ¶ 42. ↩

33. 33.

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

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

34. 34.

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

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

35. 35.

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

    (Mentions the cost concerns of States Parties). ↩

36. 36.

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

37. 37.

    Carter, supra note 30, at 470. ↩

38. 38.

    Id. ↩

39. 39.

    Id. at 471. ↩

40. 40.

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

41. 41.

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

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