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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. Other Comments on the AU

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

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

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

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

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

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

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

1. 1.

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

2. 2.

   Id. ↩

3. 3.

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

4. 4.

   Id. at Preamble. ↩

5. 5.

   Id. Art. 17(1)(a). ↩

6. 6.

   See id. Art. 5

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

7. 7.

   Id. Art. 5

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

8. 8.

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

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

9. 9.

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

10. 10.

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

11. 11.

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

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

12. 12.

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

13. 13.

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

14. 14.

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

15. 15.

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

16. 16.

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

17. 17.

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

18. 18.

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

19. 19.

    United Nations Charter, Preamble, available online. ↩

20. 20.

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

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

21. 21.

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

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

22. 22.

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

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

23. 23.

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

24. 24.

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

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

25. 25.

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

26. 26.

    Id. Art. 51. ↩

27. 27.

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

28. 28.

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

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

29. 29.

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

30. 30.

    Id. ↩

31. 31.

    du Plessis, supra note 27. ↩

32. 32.

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