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- Sydney Siwinski: Using Cultural Context to Award More Meaningful and Salient Remedies to Victims I. Introduction The Rome Statute mandates both categories of remedies available to the International Criminal Court (ICC) as well as, in many cases, the individuals to whom remedies can be awarded.1 However, the ICC’s interpretation of justice and law comes mostly if not entirely from Western legal... (more)
- diabo: Colonialism and Considering Historical Context in the ICC I. Introduction The International Criminal Court (ICC) has come under the scrutiny of legal scholars for its reliance on Western ideas of justice and its disproportionate prosecution of non-Western actors. This criticism is based in the ICC’s foundational text, the Rome Statute, and the bases for investigation and... (more)
- janinaheller: International Criminal Court: The Potential for Complementarity with the Inter-American System I. Introduction In recent years, international law experts have begun to acknowledge the potential for learning opportunities and collaboration between the International Criminal Court (ICC) and regional human rights systems.1 They have also highlighted the important role that the Inter-American System has been playing over the years in... (more)
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- Maggie Sheerin: A New ICC Justice Reflecting Regional Remedies: Reparations, Reconciliation, and Reform I. Introduction This comment will look at the various ways that the International Criminal Court (ICC) could improve its functionality as a global system, by looking to the regional human rights systems and the ways that they have each pulled from their unique regional histories, to create systems that fit their regional needs and... (more)
- etrevisani: When Non-Incarceration is Enough: Rethinking Inadmissibility Under Article 17 I. Introduction With the creation of the International Criminal Court (ICC) and the parallel development of bold new ideas surrounding restorative justice practices within the legal academy, the end of the twentieth century was a period of dramatic change for international transitional justice spaces.1 These practices reflect robust community... (more)
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Comment on the Legal Traditions Question: “To what extent has the ICC under-represented non-Western laws, principles, rules, procedures, practices, or traditions in its legal structure and system?”
When Non-Incarceration is Enough: Rethinking Inadmissibility Under Article 17
With the creation of the International Criminal Court (ICC) and the parallel development of bold new ideas surrounding restorative justice practices within the legal academy, the end of the twentieth century was a period of dramatic change for international transitional justice spaces.1 These practices reflect robust community participation in the determination of harm, afford wrongdoers more chances at restitution, and increase victim support with meaningful opportunities to express the impact of past and present harms.2 The Rome Statute’s emphasis on victim participation and reparations through international law is itself indicative of the growing desire for the implementation of restorative justice practices around the globe.3 However, the Rome Statute as currently applied is largely reflective of western adversarial justice practices that prioritize retribution through incarceration as a primary means of addressing criminal behavior. In part, due to its championing of this western adversarial model, the ICC has recently come under scrutiny for reinforcing western perspectives “as universal maxims valid for all people and nations.”4
The structure of the Rome Statute is reflective of the criminal codes of domestic legal systems.5 As the domestic legal systems of a growing number of states (including states subject to ICC jurisdiction) begin to turn away from incarceration as the primary tool for addressing criminal behavior, the question of whether a non-carceral system6 can deprive the ICC of jurisdiction under Article 17’s complementarity regime remains unanswered. This comment attempts to join a wider body of literature which asks whether the project of the ICC “leaves room” for alternative conceptions of justice beyond the Western, adversarial model.7 This comment does not attempt to articulate precise guidelines for when a case within a non-carceral system should be found to be inadmissible, but rather attempts to address whether the principle of complementarity is amenable to non-incarceration at all. As the ICC moves into a world where incarceration is increasingly de-coupled from prosecution and state-sanctioned systems of punishment, this comment explores whether non-carceral criminal legal systems can satisfy the complementary principle in accordance with Article 17 of the Rome Statute. This comment argues that the complementarity principle is compatible with non-carceral justice practices, and that the ICC would benefit from a broader interpretation of Article 17.
Section II discusses the complementarity principle and outlines a postcolonial critique of its application—that through determinations of inadmissibility under Article 17, the ICC elevates western adversarial legal traditions over others. Section III examines the interplay between Article 17and non-carceral justice practices, finding that because the Rome Statute does not specify that a nation must use criminal prosecution tied to the sanction of incarceration to avoid ICC action, the complementarity regime is compatible with non-incarceration as a matter of law. Finally, Section IV makes the normative claim that by broadening its institutional understanding of acceptable mechanisms for addressing criminal behavior under Article 17, the ICC can enhance its legitimacy in the 21st century and beyond.
II. Complementarity and the Post-Colonial Critique
Although the word “complementarity” does not appear within the Rome Statute, the principle of complementarity is codified as an issue of admissibility governed by Article 17 (and further supplemented by Articles 18 and 19). Article 17 gives the Prosecutor the ability to preclude ICC involvement in situations where alleged crimes would otherwise fall within the scope of the Court’s jurisdiction.8 At the core of the complementarity regime is the idea that domestic courts should deal with most cases of serious crimes, and that the ICC operates in limited circumstances as a “court of last resort.”9 In essence, the ICC should “complement” national criminal legal systems, rather than supplant them. Article 17 addresses the primary procedure by which a conflict of jurisdictions should be resolved.10 The principle of complementarity has allowed the ICC to localize international norms while giving priority to national justice practices when dealing with criminal behavior on a global scale.11
Under the complementarity principle, the central question before the ICC is whether a given case is inadmissible rather than admissible. Pursuant to Article 17(1), a case is deemed inadmissible if:
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;
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;
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(3); or
The case is not of sufficient gravity to justify further action by the Court.12
In order to determine unwillingness (as opposed to inability) in a given case, Article 17(2) provides that the Court should consider whether:
The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in Article 5;
There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; or
The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.13
Either the accused or a state with jurisdiction can argue that local justice practices must take precedence and may challenge the Prosecutor’s finding of admissibility under Article 17 at any point up until the start of trial.14 In theory, complementarity would require that the ICC be deprived of its authority to proceed in situations where the affected state “genuinely undertakes its own investigations and efforts to bring to justice the most serious offenders and incidents.”15 In practice, the Court has been unclear about what exactly a case that deprives the ICC of jurisdiction should look like. The Prosecutor no doubt retains much discretion in their determination of whether a restorative justice effort undertaken at the national level can preclude ICC involvement.16 Under the tenure of the first ICC Prosecutor, Luis Moreno-Ocampo, the Office of the Prosecutor (OTP) signaled a hesitance to forgo ICC proceedings in favor of national justice practices where the state response did not include criminal prosecutions.17 Despite this hesitance, the OTP has kept open the possibility of treating alternative justice practices outside the realm of prosecution as sufficient to satisfy the Rome Statute’s complementarity requirements.18 To date however, the Court has never addressed the question of whether domestic prosecutions that do not carry the potential sanction of incarceration can nonetheless be considered “criminal proceedings” for the purpose of assessing the admissibility of cases before the ICC. As the Court has remained silent on this issue, critics have increasingly taken aim at the ICC for elevating the adversarial traditions of the Global North while simultaneously failing to accommodate non-western legal traditions of the Global South that de-center “punitive individualism.”19
This line of criticism takes as a starting point the assumption that the ICC’s inherent prosecutorial authority is derived from a western adversarial criminal law tradition that is “myopically focused on punishment.”20 The ICC’s application of the complementarity principle makes clear the Court does not offer the same degree of institutional recognition to non-western legal practices that prioritize restorative justice measures over incarceration. When the government of Uganda was referred to the ICC for potential action, some scholars argued for the deference to the traditional restorative justice practices of the Acholi people rather than ICC intervention.21 The Ugandan Government worked to combine local traditional justice mechanisms with a system of domestic prosecutions and a truth commission in order to address decades of widespread violence.22 Lacking clear guidance on whether the combination of these efforts should preclude ICC involvement, the OTP proceeded with their consideration of action anyway,23 arguably putting the reconciliation efforts underway at risk.24 This lack of guidance is no accident, however. During the Rome Statute’s five-week negotiation period in 1998, among the most contentious issues was the scope of complementarity, with drafters ultimately leaving the status and standing of alternative dispute-resolution mechanisms “creatively ambiguous.”25 This ambiguity allows the ICC to convey legitimacy onto western criminal codes through findings of inadmissibility under complementarity without explicitly addressing whether the adversarial formula of trial + conviction = incarceration is the only procedural framework that can deprive the ICC of jurisdiction. If the threat of a prison sentence tied to a “western-style prosecution” is a necessary component of the complementarity principle’s application, the Rome Statute is vulnerable to the postcolonial critique that the ICC as an institution “elevates the Global North’s adversarial legal traditions over others.”26 This critique, taken together with allegations that the ICC disproportionately targets African nations27 and remains rooted in western colonial attitudes28 suggests that the Court is at risk of losing credibility as a truly international institution through its (either real or perceived) reliance on narrowly-western criminal justice practices. As the next Section will discuss, Article 17’s inherent ambiguity also presents an opportunity for future scholars and advocates to rethink the conditions for inadmissibility under the Rome Statute.
III. Article 17’s Compatibility with Non-Carceral Justice Practices
The statutory framework of Article 17 ultimately reflects a delicate balancing of two primary interests among the ICC States Parties: ending impunity for the “core crimes” of the Rome Statute and respecting individual state sovereignty.29 Within this framework, it becomes clear that one of the primary difficulties in applying the complementarity principle is Article 17’s silence on the topic of punishment. The statutory test most relevant to assessing alternative justice mechanisms leaves open what the ICC should do, and to date ICC judges have been silent on the topic of whether punishment should factor into a finding of inadmissibility under Article 17, in particular the implicit test for whether a national proceeding is “genuine.”30 Indeed, no portion of the Rome Statute states that a nation must exclusively employ criminal prosecution with a sanction of incarceration in order to avoid ICC involvement.31 Only Article 80 explicitly deals with the issue of punishment in national proceedings, establishing that ICC sentencing rules have no bearing on national laws related to criminal penalties.32 While the primary motivation among the negotiating parties for the inclusion of Article 80 was to allow states to hand down harsher sentences than the ICC, it has the additional effect of affording states freedom to impose lighter sentences as well.33
Can a lighter sentence include one without incarceration? Based on previous statements related to the issue of punishment, it is unlikely that past ICC Prosecutors would answer in the affirmative. In 2013, the second ICC Prosecutor, Fatou Bensouda, sent a letter to the Chief Justice of the Constitutional Court of Colombia which made it clear that whatever sentence imposed by the high court on demobilized paramilitary and FARC members had to be “proportionate to the offences in question, and not illusory.”34 In the letter, the Prosecutor stated:
It is clear that Prosecutor Bensouda would likely find that a national prosecution moving forward untethered from the possibility of incarceration is indicative of an inability or unwillingness to deal with the alleged criminal conduct, which would create impediments to inadmissibility under Article 17(1)(b) and 17(c). Yet Article 17’s silence on punishment, coupled with the vast discretion afforded to the OTP, allows future Prosecutors to interpret such a national effort differently. A new ICC Prosecutor is not bound by the legal interpretations or statements of their predecessors,36 and no previous ICC decision establishes that incarceration is necessary as a matter of law to deprive the ICC of jurisdiction. Future ICC Prosecutors can, and should, broadly interpret Article 17 as being procedurally compatible with non-carceral practices aimed at addressing criminal behavior.
In today’s world, it is difficult to envision a nation-state doing away with incarceration entirely, and perhaps even more difficult to imagine that such a distinctly non-carceral system would pass the muster of Article 17 complementarity analysis given the constraints discussed. However, in light of the global trends37 towards restorative justice and away from punitive retributivism, it is important for the ICC to think beyond the present to guarantee the institution’s relevance into the future. Before turning to the normative issues of institutional relevance and legitimacy however, it is important to examine the procedural claim that the complementarity principle is in fact compatible with non-incarceration practices as a matter of law.
Let us first imagine a situation where Nation X, a party to the Rome Statute, has recently undergone major reforms to their criminal code in order to reflect a societal shift in attitudes towards punishment. Let us imagine, for the purposes of undergoing complementarity analysis, Nation X retains the ability to incarcerate in limited circumstances, but ascribes significantly more discretion to judges and factfinders to employ broad restorative measures as part of sentencing, particularly in the wake of national crises where resources are limited and victims are still wary of coming forward. Present in any given criminal case within Nation X is the possibility that incarceration will not play a role following a conviction, even for crimes and conduct that would normally fall within the scope of ICC jurisdiction. As written and applied, the Rome Statute is silent as to whether the ICC would lose its jurisdiction under the complementarity principle if Nation X were to proceed with a good-faith multi-pronged national response aimed at promoting forgiveness and rebuilding damaged community relationships, and the OTP knew that incarceration was an unlikely result of the prosecution.38
In order to make a case arising from Nation X inadmissible, a national authority would have to show that Nation X is genuinely dealing with a case that mirrors the case the ICC could make in terms of both conduct and suspects .39 In the scenario described above, Nation X would have to show that whatever statutory scheme they plan to employ directly impacts those most responsible for whatever “core crimes” are at play.40 Implicit in the same suspect test required by Article 17 is the institutional imperative to prevent future crimes by holding the most responsible to account for past egregious acts. But does this test necessarily require incapacitation through state-sanctioned incarceration? Though this real-world scenario does not exist today, one could imagine a hypothetical situation where perpetrators within Nation X’s case are (by the OTP’s own estimation) genuinely remorseful, no longer a threat to the general public, or are being surveilled and effectively incapacitated through non-carceral means. Thus, while there are practical constraints given the current nature of virtually all domestic criminal codes, there is no reason why a future Nation X could not pass the same suspect test assuming the people they are targeting through national efforts are the same alleged perpetrators being considered as potential targets for ICC action. Nation X would be under no obligation to show that their reformed criminal codes reflect the same definitions of crimes as the ICC.41 Thus, Nation X would only need to show that the person or people being investigated and prosecuted is allegedly responsible for the same conduct outlawed under the Rome Statute.
Having passed Article 17’s same suspect and same conduct test, Nation X would still face one significant hurdle in achieving inadmissibility—a showing that, taken together, the multi-pronged non-carceral measures described do not indicate an unwillingness or inability to prosecute. If the OTP were to determine that Nation X is attempting to employ these alternative justice mechanisms as a “device to shield people from criminal responsibility” or determine that Nation X’s “entire treatment of the matter domestically was a sham,” then the ICC can still assert jurisdiction under Article 17.42 However, while a complete lack of any intent to incarcerate may very well trigger one of these provisions according to the reasonable analysis of OTP staff in practice, it is important to note that the OTP is not legally required to do so. Indeed, the determination of whether an Article 17(1)(b) or Article 17(1)(c) roadblock exists is a matter largely left to the discretion of the Prosecutor. Thus, in the situation sketched out above where the OTP determines through its own domestic analysis that Nation X is proceeding in good faith and has the ability to see its ongoing prosecutions through to the end, no portion of the Rome Statute would require the OTP to assert ICC jurisdiction simply because Nation X will not incarcerate the accused perpetrator(s).
This hypothetical exercise involving Nation X demonstrates that, in some limited circumstances (and under a broader interpretation of the Rome Statute’s complementarity principle), non-incarceration could be enough for the ICC. Thus, as a matter of law, complementarity is compatible with non-incarceration. Recognizing that this compatibility has not yet been borne out in fact given the current realities of international criminal justice, the question still remains as to whether allowing non-carceral justice practices to deprive the ICC of jurisdiction in the future would be a good thing. As discussed in Section IV, the ICC could benefit from this broader interpretation of Article 17 and the institutional recognition that “not all prosecutions lead to incarceration, and there is no reason why prosecution must exclude processes leading to other types of punishment”.43
IV. Towards a Broader Interpretation of Article 17
An interpretation of Article 17 which limits the scope of inadmissibility to criminal proceedings tethered to carceral retribution is problematic because, as discussed, it adds a distinction which the Rome Statute does not make. While clearly relevant in the broad run of cases (at least for the foreseeable future) to a determination of prosecutorial willingness and ability under complementarity analysis, incarceration itself is not a necessary component of Article 17’s interpretation. In assessing the merits of interpreting complementarity as not requiring incarceration, the ICC should be analyzed from the standpoint of institutional legitimacy.
The ICC depends on support from its member states and recognition from the larger geopolitical community in order to assert legitimacy as an institution and relevance in shaping international legal norms. If the ICC hopes to maintain its place as a respected authority for international transitional justice, it must be open to institutional reorientation grounded in the best available methods for responding to, mitigating, and preventing criminal conduct. Whether practices fall under the umbrellas of restorative justice, Islamic justice, or indigenous justice (to name just a few), domestic legal systems around the world employ justice mechanisms that have their theoretical underpinnings outside of the western adversarial system in ways that embrace alternatives to both impunity and punitive retributivism.44 Even western nations, including non-parties to the Rome Statute, are beginning to embrace restorative justice ideas and fold them into their respective criminal codes. In the United States, for example, while the availability of practicable restorative justice remains low for murder cases and other capital offenses,45 the usage of some restorative justice practices is increasingly common in misdemeanor and juvenile cases.46 If the ICC is able to do more to offer institutional recognition of non-incarceration (and restorative justice more broadly), it is more likely that the institution can weather the neocolonial critiques previously mentioned and maintain its relevance in a rapidly evolving global legal landscape.
If the central pillars of a given nation’s criminal justice system are reflected within an international legal body’s practices in a meaningful way, it follows that the nation is more likely to see that body’s proceedings as legitimate and receptive to their ideas. By taking a broader interpretation of Article 17’s complementarity principle, the ICC would be widening its contract zone for the discovery of acceptable justice practices and allow more nations, including nations that are taking significant steps to deprioritize incarceration within their criminal codes, to see themselves reflected within an institution that purports to advance universal principles of criminal justice. A wider contract zone that more seriously accounts for restorative justice practices allows for a greater distribution of justice outcomes seen by those directly impacted by criminal conduct as fair.47 Because a broader interpretation of the complementarity principle would entail recognition of more practices that are familiar to nations in the context of their own domestic criminal systems, it follows that countries which widely employ non-carceral or restorative practices will be more likely to join the ICC if they haven’t already, and that member states that go on to incorporate these practices (or have already incorporated them) will be more likely to view the ICC’s greater mission and ongoing proceedings as legitimate.48
It is clear that a broader interpretation of Article 17 would allow the ICC to become more amenable to restorative justice practices as an institution. An empirical claim often surfaced among justice theorists is that restorative justice practices offer a greater likelihood for procedural and distributive justice as compared to existing adversarial practices.49 However, even those theoretically opposed to restorative justice practices have institutional reasons to desire an ICC that nonetheless recognizes the legitimacy of these practices. Cass Sunstein argues that the heterogeneity of human values and irreconcilable differences in personal morality makes it so that adjudicatory bodies necessarily deliver outcomes that parties accept for incompatible (often contradictory) ethical reasons.50 Attempting to illustrate Sunstein’s basic claim that incompletely theorized agreement surrounding legal outcomes is a good thing, Ray Nickson and John Braithwaite describe the following hypothetical scenario in which non-carceral practices could be construed as sufficient to withhold the invocation of ICC jurisdiction:
Because the institutional recognition of non-western restorative justice practice would amplify the ICC’s real and perceived relevance, even those who are less oriented towards rehabilitation, have practical reasons to read Article 17 more broadly. By broadening its conception of justice, the ICC improves its ability as an international transitional justice space to “deliver non-western as well as western conceptions of justice.”52 As such, Prosecutors within the ICC should choose to interpret Article 17 to encompass non-carceral and restorative justice measures that it deems sufficiently genuine.53 The Court can and should enhance its legitimacy by broadening its institutional understanding of acceptable mechanisms for dealing with criminal behavior. This would enable the ICC to take restorative justice more seriously without totally displacing extant legal narratives of what justice is, and allow for incompletely theorized agreement in the future on whether justice is being served in a particular case.
A potential objection to the claim that non-carceral practices are compatible with complementarity is that an overbroad reading of Article 17, if acted upon to deprive the ICC of jurisdiction in cases where states are moving forward with prosecutions without incarceration, may have the effect of increasing impunity. This objection posits that the perpetrators of heinous crimes over which the ICC would historically assert jurisdiction would have greater opportunities to craft credible inadmissibility arguments and avoid state-sanctioned punishment for past criminal conduct. Even under the careful watch of the OTP, and even if the state’s efforts are made in good faith on paper, critics of this comment’s normative claims may argue that a unduly broad reading of the complementarity principle would increase the probability that those most responsible for crimes within the ICC’s purview could escape accountability for their actions, thus undermining the primary purpose of the Rome Statute.
Even conceding that a broader reading of Article 17 would necessitate a minor recalibration of complementarity’s balancing act between state sovereignty and the struggle against impunity in favor of state sovereignty, a potential response to this objection is that the institutional benefits outlined previously outweigh the costs associated with an increase in the number of future individuals that escape prison time for conduct that, in today’s world, would absolutely warrant ICC jurisdiction. These benefits are most easily exemplified by an imagined future where the ICC has weathered institutional attacks directed from every conceivable angle and maintained its relevance and legitimacy for decades, even centuries, in the face of the fundamental shifts in societies’ attitudes towards conduct that has historically been construed as criminal. Just as the last one hundred years have seen significant changes to the way criminal codes are structured and the values they propagate, the next one hundred years will likely render national criminal legal systems unrecognizable from today’s perspective. If the ICC is to maintain, and perhaps enhance, its legitimacy over that same time period, the Prosecutor must consider pivoting away from the adversarial values exemplified by the Court thus far and take concrete steps to make the ICC a more international —and less narrowly-western—institution.
If the ICC hopes to maintain truly global relevance, it shouldn’t tie its hands by asserting an interpretation of Article 17 which categorically excludes non-carceral practices. The internal roadblocks within complementarity analysis (namely Article 17(1)(b)–17(1)(c) ) afford the Prosecutor wide discretion to invoke jurisdiction in the face of non-carceral practices without the ICC as an institution, or individuals within OTP, taking a position as to whether incarceration (or the threat of incarceration) needs to be present in every case that is found to be inadmissible. Neither the OTP, nor the members of the Court itself, have publicly taken such a position, and for the reasons previously stated, this is a good thing. Thus far, Article 17’s inherent ambiguity has left much open to interpretation. But if and when the time comes, it would be beneficial for the ICC to take a firmer position and affirmatively assert (as this comment has) that non-carceral practices are compatible with complementarity as a matter of law, as this would signal to the world that the ICC is attune to the prevailing ideas and arguments surrounding incarceration, punishment, and criminal law. Through a recalibration of the complementarity principle’s balancing of interests in favor of state sovereignty that results in more cases warranting ICC jurisdiction being dealt with on the national level, the ICC can contribute to an increase in civic trust among the nations that need it most: those that are attempting to rebuild confidence in societal institutions after deeply tumultuous times. This is because national proceedings, more so than international ones, have the ability to meaningfully restore public confidence in the same institutions that have previously failed members of society.54
In accordance with the recommendations set forth in this comment, the ICC Prosecutor should continually revisit the conditions for inadmissibility under Article 17 as the global need for criminal prosecutions changes moving forward. Even in total accordance with this comment’s recommendations, a reasonable complementarity analysis could very well find that a future prosecution without incarceration does not adequately address criminal behavior or otherwise subverts the spirit of the Rome Statute’s battle against impunity. This would likely be the case in almost any foreseeable application of Article 17 in today’s world. But a broader interpretation of Article 17 acknowledges that a future non-carceral national effort could deprive the ICC of jurisdiction, so long as the conditions for inadmissibility under the complementarity principle are otherwise met (however unlikely such a case may be).
While it may be difficult to imagine any situation where a fully functional non-carceral justice system could exist vis-à-vis the kinds of crimes targeted under the Rome Statute, it is nonetheless important to delineate the nature of the role that incarceration plays within the ICC’s complementarity analysis. This comment has attempted to do just that. Because the Rome Statute does not explicitly require a showing of incarceration, Article 17 is compatible with non-incarceration as a matter of law. As the world continues to shift away from incarceration as the primary mechanism for dealing with criminal conduct, the ICC ought to broaden its institutional understanding of justice by allowing for certain non-carceral (and in effect, non-western) justice practices to satisfy the complementarity principle. It is desirable to rethink the scope of the ICC’s inadmissibility analysis in ways that will enhance the ability of the Court as an international transitional justice space to deliver a wider range of acceptable procedural outcomes and incompletely theorized agreement on the question of whether justice has been served. In doing so, it is possible to envision an ICC that is better able to respond to criticisms that it fails to properly acknowledge the virtues of non-western justice systems, and one that is more likely to maintain institutional legitimacy in the decades to come.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
See John Braithwaite, Restorative Justice & Responsive Regulation (2002), available online; Allison Morris, Critiquing the Critics: A Brief Response to Critics of Restorative Justice, 42 BJC 596 (Jun. 1, 2002), paywall, archived. ↩
See generally, Joanna Shapland, Forgiveness and Restorative Justice: Is It Necessary? Is It Helpful?, 5 OJLR 94 (Feb. 17, 2016), available online, archived, doi. ↩
See Linda M. Keller, Seeking Justice at the International Criminal Court: Victims’ Reparations, 29 T. Jefferson L. Rev. 189 (Nov. 2006), available online. ↩
Awol Allo, The ICC’s Problem is Not Overt Racism; It is Eurocentricism, Al Jazeera, Jul. 28, 2018, available online. ↩
See Fanny Benedetti, A Report on the Negotiations for the Creation of an International Criminal Court, 5 Hum. Rts. Br. 6 (1997), available online. ↩
(In the context of this comment, “non-carceral system” refers to either a system where incarceration is not available as a mechanism for punishment or one where it is available but not required in a given case). ↩
Martha Minow, Do Alternative Justice Mechanisms Deserve Recognition in International Criminal Law?: Truth Commissions, Amnesties, and Complementarity at the International Criminal Court, 60 Harv. Int’l L.J. 1, 7 (2019), available online. ↩
Id. at 10. ↩
Id. at 9. ↩
See Paul Seils, ICTJ, Handbook on Complementarity: An Introduction to the Role of National Courts and the ICC in Prosecuting International Crimes 1, 29 (2016), available online, archived. ↩
See Office of the Prosecutor, ICC, Informal Expert Paper: The Principle of Complementarity in Practice (2003), available online, archived. ↩
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), available online. ↩
Id. Art. 17(2). ↩
See Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 251 (2008), available online. ↩
Minow, supra note 7, at 4. ↩
Id. at 11. ↩
See Kate Allan, Prosecution and Peace: A Role for Amnesty Before the ICC, 39 Denv. J. Int’l L. & Pol’y 239, 243–44 (2011), available online. ↩
See Office of the Prosecutor, ICC, Prosecutorial Strategy 2009–2012 (Feb. 1, 2010), available online. ↩
Ray Nickson & John Braithwaite, Deeper, Broader, Longer Transitional Justice, 11 Eur. J. of Crim. 445, 448 (Jul. 1, 2014), available online, doi. ↩
See Terry Beitzel & Tammy Castle, Achieving Justice Through the International Criminal Court in Northern Uganda: Is Indigenous/Restorative Justice a Better Approach?, 23 ICJR 41, 48 (Feb. 7, 2013), available online, doi. ↩
See Patrick Wegner, ICC Complementarity, Positive Peace and Comprehensive Approaches in Transitional Justice, Just. in Conflict (Oct. 13, 2011), available online, archived. ↩
See Minow, supra note 7, at 7. ↩
See Scott Worden, The Justice Dilemma in Uganda, USIP 5 (Feb. 1, 2008), available online, archived. ↩
Dwight G. Newman, The Rome Statute, Some Reservations Concerning Amnesties, and a Distributive Problem, 20 Am. U. Int’l L. Rev. 293, 321 (2005), available online. ↩
See Minow, supra note 7, at 17. ↩
See Is the ICC Targeting Africa Inappropriately?, ICC Forum (Mar. 17, 2013), available online; see also Asad G. Kiyani, A TWAIL Critique of the International Criminal Court: Contestations from the Global South, CPSA (2011) (Working Paper), available online. ↩
See generally, Makau W. Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 Harv. Int’l L.J. 201, 212 (2001), available online. ↩
See Markus Benzing, The Complementarity Regime of the International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight Against Impunity, 7 Max Planck Y.B. U.N. L. 591, 595 (2003), available online. ↩
Seils, supra note 10, at 66. ↩
See Keller, supra note 14, at 256. ↩
Rome Statute, supra note 12, at Art. 80. ↩
See Seils, supra note 10, at 64. ↩
Aaron Acosta, Measuring Performance: A Case Study of Positive Complementarity Catalyzed During the Preliminary Examination Stage in Colombia n. 40, ICC Forum (Jul. 15, 2017), available online. ↩
See Minow, supra note 7, at 11. ↩
See Daniel W. Van Ness, Restorative Justice: International Trends (Oct. 7, 1998) (Presentation, Victoria University), available online. ↩
See Minow, supra note 7, at 5. ↩
Id. at 46. ↩
Rome Statute, supra note 12, at Art. 5. ↩
See Seils, supra note 10, at 35. ↩
Minow, supra note 7, at 18. ↩
Keller, supra note 14, at 256. ↩
See Nickson & Braithwaite, supra note 19, at 445. ↩
Cynthia Alkon, Restorative Justice for Murder?, Indisputably (Jan. 6, 2013), available online, archived. ↩
Gordon Bazemore & Susan E. Day, Restoring the Balance: Juvenile and Community Justice, 3 Juvenile Just. J. 3 (Dec. 1996), available online, archived. ↩
See Heather Strang, Victim Participation in a Restorative Justice Process: The Canberra Reintegrative Shaming Experiments 190 (2002) (Ph.D. thesis, Australian National University), available online
(concluding that restorative justice appears to have the potential to allow affected parties to benefit more often than adversarial justice). ↩
See Emilia Justyna Powell & Sara McLaughlin Mitchell, The Creation and Expansion of the International Criminal Court: A Legal Explanation, Midwest Pol. Sci. Ass’n Conf. 38 (Jan. 12, 2009), available online, archived, doi. ↩
See Braithwaite, supra note 1, at 54. ↩
See Cass R. Sunstein, Incompletely Theorized Agreements Commentary, 108 Harv. L. Rev. 1733, 1772 (1994), available online. ↩
Nickson & Braithwaite, supra note 19, at 449. ↩
Id. at 448. ↩
See Keller, supra note 14, at 256. ↩
See Seils, supra note 10, at 9. ↩