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

Doing Away with the ICC’s Unitary Structure

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

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

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

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I. Structuring the ICC Regional Circuit Chambers

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

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

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

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

Each regional circuit’s Prosecutor would have the rank of a Deputy Prosecutor. Since the Rome Statute does not specify the number of Deputy Prosecutors, there would be no need for an amendment to accommodate an increase in their number (currently, there are two).11 And since, Deputy Prosecutors are “entitled to carry out any of the acts required of the Prosecutor under this Statute”12 and “on a full-time basis,”13 no amendment is required to appropriately empower the Deputy Prosecutors in each circuit. The powers and functions of each Pre-Trial regional circuit chamber, each Trial regional circuit chamber and each Appeal regional circuit chamber will remain the same. The ICC’s current structure, i.e., the bench of all the judges, might serve as a final court of appeals. It could resolve certain circuit splits on issues fundamental to the Rome Statute, rule on issues of concurrent jurisdiction among the regional circuit chambers or other procedural matters, etc.

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

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

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

II. The Circuit Structure Benefits the Principle of Complementarity

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

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

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

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

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

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

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

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

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

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

III. Potential Criticisms of the Proposed Circuit Structure

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

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

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

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

  1. 1.

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

  2. 2.

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

  3. 3.

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

  4. 4.

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

  5. 5.

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

  6. 6.

    Magliveras, supra note 5, at 433. ↩

  7. 7.

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

  8. 8.

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

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

  9. 9.

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

  10. 10.

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

  11. 11.

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

  12. 12.

    Rome Statute, Art. 42(2). ↩

  13. 13.

    Id. ↩

  14. 14.

    Id. Art. 122(1). ↩

  15. 15.

    Id. Art. 122(2). ↩

  16. 16.

    Id. ↩

  17. 17.

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

  18. 18.

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

  19. 19.

    Nouwen, supra note 2, at 1131. ↩

  20. 20.

    Id. ↩

  21. 21.

    Id. at n.38. ↩

  22. 22.

    Id. at 1131. ↩

  23. 23.

    Id. at n.45. ↩

  24. 24.

    Id. at 1137. ↩

  25. 25.

    Vinck & Pham, supra note 4. ↩

  26. 26.

    Id. ↩

  27. 27.

    Id. at n.4. ↩

  28. 28.

    Id. at 67. ↩

  29. 29.

    Id. ↩

  30. 30.

    Id. at 68. ↩

  31. 31.

    Id. at 69. ↩

  32. 32.

    See Prosecutorial Strategy, supra note 3. ↩

  33. 33.

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

  34. 34.

    Id. at 26. ↩

  35. 35.

    Id. at 35. ↩

  36. 36.

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

  37. 37.

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

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

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