Another avenue of cooperation would be a formal training program where States that are interested in bolstering their ability to investigate and prosecute crimes similar Article 5 Crimes, send their staff to the Hague for formal training, similar to an LL.M. or clerkship. Finally, the ICC could provide advisory observations, similar to amicus briefs, to national courts during criminal proceedings, essentially serving as expert witnesses and lending their skills in a persuasive authority. In the long run, this could help build new national case law, with judges adopting ICC originated arguments and analysis in their decisions. However, all of these suggestions for means of cooperation carry a financial cost, and the ICC has a limited budget. Thus, they may prove more aspirational than practical.

II. Source of ICC Authority to Assist in National Courts: A Risky, Complex Endeavor

Aside from doctrinal and political objections to universal jurisdiction being applied in national courts, there are also significant practical barriers. The ICC is authorized to help overcome these barriers through the provision of “Other forms of cooperation.”15

As stated in the Rome Statute:

The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.16

This provision grants the ICC the right to assist State Parties, i.e., signatories to the Treaty, in their investigation or trial of the four defined Article 5 Crimes, as well as other serious crimes defined under a States’ national law. The vagueness of the latter portion of this sentence appears to be a broad authorization as to which types of crimes it may aid with. It also appears to defer to the requesting State to determine what constitutes a serious crime. Presumably where a States’ national law extends to foreigners under a universal jurisdiction doctrine, this threshold would be met and the ICC would be authorized to assist. However, this also begs the question of whether the Court would agree to aid in other infractions not contained in the Rome Statute, such as drug trafficking, which some signatories likely view as being overly prosecuted or even discriminatory. For instance, assisting in the investigation and trial of narcotics traffickers in the United States by U.S. national prosecutors may be viewed detrimentally by ICC-funding States in Europe who are opposed to U.S. drug policy on abolitionist grounds, or State Parties in Latin America who feel their nationals are disproportionately targeted.

Also, would the Office of the Prosecutor (OTP) or another organ of the Court have the authority to determine whether a crime is serious or unserious and thus worthy of cooperation? Or would this determination truly be left to the requesting State as the Statute seems to assert? The OTP is just one of the five organs of the Court.17 Per Article 42(1), the Rome Statute asserts:

[The Prosecutor] shall act independently as a separate organ of the Court. [… and …] [It] shall be responsible for […] conducting investigations. […] The Prosecutor shall have full authority over the management and administration of the Office, including […] the resources thereof.18

When the Rome Statute refers to The Court throughout Article 93, it is unclear where the decision-making authority to cooperate or not cooperate rests, i.e., does the decision to share evidence or provide other assistance during a State’s national trial belong to the Presidency, the OTP, Chambers, or even the Registry? Given the political backlash cooperating may lead to, how this cooperative power is wielded is important.

If dissemination of evidence is considered a “non-judicial aspect of the administration and servicing of the Court”19 it would seem the responsibility to share evidence belongs to the Registry. Yet, according to Article 42, the OTP has full authority to manage and administer its resources and is intended to operate independently. Is evidence a resource of the OTP’s office? If so, the power should rest with it to independently determine its best use. The time and expense of the OTP’s staff seem even more squarely within this reading. Conversely, the Presidency given its “role in representing the Court to the outside world,” also seems to have a viable claim to speak for the Court on this issue.20 International cooperation would seem to fit into this representative, almost diplomatic, quasi-foreign policy-esq capacity. Finally, the discretionary may21 preceding the entire provision of cooperation implies that this is a decision which should be left to the Pre-Trial Chambers, whose “role is essentially to supervise how the OTP carriers out its investigatory and prosecutorial activities”22 according to the ICC in Understanding the Court.23

Given the historical practice of the OTP as leading the direction of the Court, along with its mandate to act independently on matters of investigation, I suspect the Prosecutor will have an outsized role in handling and deciding when and how to cooperate (even though the law is ambiguous on this). According to the ICC, it is in fact the OTP that has the responsibility. Part of the OTP is The Jurisdiction, Complementarity, and Cooperation Division, one of the four divisions that make up the OTP.24 In order to implement active participation in national court prosecutions, it would be advisable to increase the staffing of this division, which currently has approximately twelve employees, who are primarily former diplomats rather than lawyers. Shifting resources from two-hundred attorney strong Prosecution Division, or one-hundred employee Investigative Division, is one route to accomplish this. However, doing so would likely lead to less prosecutions at the ICC. This is a pragmatic reality that the OTP surely will contemplate. In the long run, the capacity building that this may lead to in national courts should have a force-multiplier effect, thus expanding the pie and encouraging less of a zero-sum calculation.

Some of this confusion is attributable to the mixed, international nature of the Treaty, which was drafted and negotiated by many countries (including the United States, even though it is not a signatory). These stakeholders came from mix of civil and common law traditions, which take differing views on the separation of prosecutors and judges.25 My focus on this may just as well be overblown, coming from a federalist system that strongly emphasizes delegated powers, and forgetting that the ICC is not itself a federated, sovereign state.26 Regardless, the decision to cooperate or not cooperate seems like an opportunity ripe to become politicized, whether it is at the hands of prosecutorial discretion or judicial decision. For instance, while the United States is not a State Party, under the Rome Statute it also has the right request for cooperation, which the Court may or may not agree to provide.

As stated in Article 93(10)(c), the ICC generously expands the offer of investigatory and trial assistance to non-signatories:

The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.27

It is conceivable that the United States may seek evidence collected by the OTP for use in domestic prosecutions of arms traffickers, terrorists, or drug smugglers, among others. Given that the United States has at times had a very hostile relationship with the ICC, to the point of sanctioning the entity and its personnel, would it be expected that the OTP or other organ of the Court share evidence? According to the discretionary may in Article 93, it is fully within the Court’s prerogative to decide to cooperate with such a request, for ostensibly whatever reason it sees fit. The potential for politicization of such cooperation may lead to an unfair application of justice, where a national court’s access to ICC gathered evidence, or trial assistance, depends on the requesting State’s present relationship with the Court (or the OTP in particular). Such an outcome could prejudice the rights of victims, who might be denied justice due to the forces greatly beyond.

For instance, if a perpetrator of genocide resided in the territory of a non-State Party and that country had the jurisdiction and desire to prosecute but lacked evidence in the ICC’s possession necessary to obtain a conviction, that perpetrator could go unpunished but-for the ICC’s cooperation.28 If that cooperation depended on politics or other biases against that national court, this would go against the object and purpose of the Treaty to “put an end to impunity for perpetrators of these [most serious] crimes”29 and would be against the interests of justice30 generally.

Conversely, Article 93 seems to prejudice the rights of the accused by specifying that the requestor must be a State Party31 or other “State which is not a Party to this Statute.”32 This explicitly prohibit individuals or non-state organizations from making such a request. For instance, if an accused individual believes the Court is in possession of exculpatory evidence, Article 93 provides no route of evidence sharing, other than a formal request by a State. Thus, for a defendant in a national court proceeding to obtain such evidence, he or she would be required to petition the national government that is bringing the case against them, or potentially a third-party State, to submit a request on their behalf to the ICC. Article 96 gives precise—and potentially onerous—rules that this request must follow.33 This is an additional procedural barrier which prejudices the accused when being tried in a national court setting, and which seems to go against the rights of the accused enshrined including the right to a “fair hearing conducted impartially…in full equality.”34 While these rights are intended to accrue to the accused during a trial before the ICC, that they would not be respected when the ICC has used its discretionary authority and semi-sovereign resources to gather evidence, especially when that evidence may be exculpatory, seems to be an affront to the generally accepted principle of prompt dissemination of exculpatory evidence and not in the interest of justice.

This principle is codified in Article 67(2):

[T]the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.35

Where the Prosecutor seeks and fails to prosecute a perpetrator at the ICC, is he or she likely to volunteer such exculpatory evidence during a trial before a national court, especially when there is no express obligation to so?

It seems reasonable that jurisdictional complexities and the limited resources of the OTP may serve as convincing excuses for the Prosecutor failing to disclose exculpatory evidence during a national proceeding, resulting in injustice based on personal or institutional bias. Or to disclose in a manner that is consistent with the Prosecutor’s current relationship with the State in which a universal jurisdiction prosecution is being held, resulting in injustice based on political bias. As such, Article 93’s version of one-sided cooperation is biased against the defense of the accused in a national prosecution.36 This is in line with arguments put forward by many scholars that prosecutors in general, and the ICC’s Prosecutor in particular, have an imbalance of power due to the State’s greater resources and influence.37 To avoid these biases, the OTP should develop an apolitical evidence sharing system that is equally accessible to State prosecutors as well as defendants.

The ICC’s online digital archive, accessible to anyone who registers, seek to accomplish. However, in practice the vast sums of data contained within it are hard to navigate and there is a high likelihood that evidence that would be useful in a national investigation or trial may be missed, by either side. Improving the search functions of this archive and mandating that the OTP update it with exculpatory evidence as it is discovered, even after the Court has determined it will not proceed with a trial, would help to ensure prosecutorial bias does not hurt justice in national courts. Similarly, increasing the searchability of the data will make national investigations more efficient. This could be achieved through trainings, led by the OTP or the Registry, with prosecutors and investigators in States that practice universal jurisdiction.

III. Extent of Authorization to Cooperate: More Comments on Evidence

The scope of cooperation is also exceptionally broad under Article 93. The assistance which the Court may be provide to States is defined as being provided, inter alia.38 The use of inter alia, or “among others”, gives the OTP broad authorization to help requesting States in nearly anyway it sees fit, with some minor caveats. One of these caveats, found in Article 93(10)(b)(i)(a), demands that before providing a requestor evidence that the ICC procured with the assistance of a State, it must obtain that State’s consent.39 For example, if a State’s national police gathered evidence against an accused through a wiretap that it then provided to the ICC, the ICC must get the State’s consent before sharing the tapes with the requesting third party State. Generally, the ICC collects evidence independently, i.e., it is rarely relies on the State to help it collect physical evidence. As such, this caveat does not come up often in practice. Were the Court to more frequently investigate matters in developed countries, it is likely that State assistance in investigations would be more commonplace, as a result of increased State capabilities and more democratic political landscapes, which may lead to this caveat being triggered more frequently. The Court has shown interest in handling a more diverse range of cases, including against American officials, which have also been taken up by national courts on universal jurisdiction grounds.40 As such, it is conceivable that requests for evidence that was provided to the ICC by States will increase over time. For example, if an Eastern European State provided the ICC with evidence regarding a U.S. black site prison operating in its territory, and then France requested access to the same evidence for use in a domestic prosecution of U.S. officials under a universal jurisdiction doctrine, the Eastern European State’s consent would be required under Article 93. Political pressure may strongly influence whether such a State grants this consent, especially if the government that initially provided the evidence to the ICC has changed, or if its government’s relations with the United States have deteriorated. A solution for this may be that the OTP seeks irrevocable consent for future dissemination of such evidence upon the receipt of it, in the event that it is requested for use by a third-party national prosecution of the same or similar crimes for which it it was provided to the ICC. This seems like a viable contractual work around to obligate the provider and insure against politically motivated changes of heart.

Additionally, the Rome Statute explicitly makes no assurances on the relevance or admissibility of evidence collected by a State on that evidence’s admissibility in the State’s national courts.41 Ostensibly, the same consideration would apply to the relevance or admissibility of evidence in other States’ national courts. However, that is not what the Rome Statute says. That is left up to national courts to determine, likely due to sovereignty concerns. This provides the OTP an opportunity to help other national courts pursuing universal jurisdiction prosecutions. Firstly, it could seek formal decisions from Chambers on the credibility of evidence, which may carry persuasive, or even binding authority in national courts, depending on the national law.42 Secondly, OTP personnel could serve as expert witnesses themselves in universal jurisdiction trials conducted in third-party national courts, something that is not explicitly prohibited in the Rome Statute. While they would not have official authority, and may not even be testifying in their capacity of an ICC employee, given their extensive training and experience in the area, they would be uniquely qualified to opine on the credibility of evidence collected in war zones and post-genocide societies. Through expert witness work as well as the Courts own decisions, the ICC has potential to help set global standards such evidence. The OTP can promote this further by pushing the Court to give detailed analysis in their decisions, for the standards used to determine credibility and admissibility, and encourage it to rule on the credibility of evidence that might otherwise be seen as superfluous for the case at hand, but which may have significant value to future prosecutions in other courts.

IV. Other Opportunities for the ICC to Help in Capacity Building at the National Level

Where there is the greatest potential for the OTP to help national courts be more effective in is through capacity building. Article 93 gives the ICC broad authorization to help States investigate, and even assist in trial of, Article 5 Crimes and other serious crimes.43 Given the rarity of prosecuting crimes brought under the universal jurisdiction doctrine, namely Genocide, War Crimes, and Crimes Against Humanity, the OTP likely has more experience litigating such matters than the vast majority of national prosecutors. As such, the OTP is in a unique position to help national courts develop capacity to handle these matters. Firstly, the OTP allow the Prosecutor and Deputy Prosecutor, as well as the other attorneys in the OTP, to petition national courts to serve pro hac vice or in other, hands-on direct capacities during universal jurisdiction cases. Second, the OTP should develop a department specialized in drafting amicus briefs for use in national proceedings, summarizing their take on the issues presented. Third, the OTP should develop a program where it trains national prosecutors on how to build and litigate Article 5 Crimes. By using these capacity building methods, the Court could encourage the domestic prosecution of Article 5 Crimes, promoting the principle of complementarity, while supporting also national courts that are pursuit of universal jurisdiction.

A. Providing ICC Prosecutorial Staff to National Courts

The OTP could become a more effective partner to national governments’ prosecutions by loaning its prosecutors to requesting States investigating and prosecuting serious crimes that the OTP has unique expertise in handling. Genocide, war crimes, and crimes against humanity are inherently complex. The investigation and prosecution of these crimes require collecting evidence in active or former warzones where witnesses are vulnerable, physical evidence is hard to preserve, and where a variety of complex legal doctrines collide. From persuading a court to accept the State’s position on gravity or disproportionality, to helping investigators dissect the culpability of former child soldiers in the recruitment of new child soldiers, the range of issues presented when prosecuting such atrocities requires a high degree of specialization. Given the infrequence of such crimes, and their prosecutions, few domestic prosecutors’ offices are equipt to adequately handle these matters as proficiently as the OTP. Thus, the OTP should make their personnel available to help national courts navigate these issues directly, by actively helping prosecutors try cases, in a pro hac vice capacity,44 or simply by consulting with prosecutors and investigators as they prepare for trial on a particular matter.

If the ICC were to take a more proactive role in deploying its current and former prosecutorial staff to practice in national courts, the ICC could develop into what it was intended to be—a court of last resort. While such representations would require the national law to allow for this, it is reasonable that nations which have warmed to universal jurisdiction, will also be amendable to this. Similarly, developing nations interested in increasing their overall prosecutorial acumen and signaling their compliance with human rights would also likely accept.

However, this could also be viewed by defendants and the public as giving the State an unfair upper hand in prosecutions and an unreasonable allocation of State police power to a non-citizen. In some jurisdictions, prosecutors are themselves technically part of the judiciary with enhanced legal protections and status, such as in France and Italy,45 raising further concerns over accountability and sovereignty. Where a noncitizen is handling a prosecution, the ability of the State and the public to hold them accountable for misconduct also may arise. These issues could be avoided by matching OTP personnel to Article 93 requests, based on their citizenship and where they are already authorized to practice. The goal of these joint representations would be to ensure the highest caliber of legal services are brought bear on serious matters and to give national prosecutors hands on training and mentorship. As previously discussed, this would also involve a reduction in staff available for ICC investigations and prosecutions.

B. OTP Drafted Amicus Briefs

Second, the OTP and other organs of the Court could issue amicus briefs or other declaratory statements on general international criminal law standards and on particular active matters, at the request of a State. Such observatory documents could prove to be useful in helping inexperienced prosecutors and judges analyze issues which the ICC has extensive experience dissecting. For the reasoned discussed earlier, this may lead to unfair outcomes given that only the State can make such requests. Additionally, both this and the prior suggestion may conflict with the Prosecutor and Deputy Prosecutor’s obligation not to engage in activities that interfere with their duties or affect confidence in their independence.46 The OTP’s Legal Advisory Section would likely have to opine on whether these suggestions go beyond what the Rome Statute authorizes. Over involvement in national court prosecutions, even through persuasive authority, may be construed as overly interventionist. Such a characterization could lead to further resistance to the ICC from the United States, Russia, China, and other global powers, which could lead to cut funding and encourage their allies to withdrawal. Nonetheless, if done legitimately, such persuasive briefings could be of great value. They could help States’ local prosecutors develop stronger arguments and help domestic courts adopt better reasoning in their published decisions, potentially leading to more robust, globally standardized precedents.

C. OTP Sponsored Formal Training Program and Specialization for National Prosecutors

Third, the OTP should institute a formal training program for prosecutors from States with universal jurisdiction laws or a need to develop skills to prosecute serious domestic crimes. Such a programs could consist of an apprenticeship or clerking program where national prosecutors work under seasoned OTP attorneys directly at the Hague, a specialization process for national prosecutors accredited by the ICC or ran directly by the OTP, as well as classroom-based training programs. This would encourage complementarity, through capacity building, and the application of universal jurisdiction. Additionally, it would fit well within the object and purpose of the Rome Statute to promote effective prosecution at the national level in order to enhance international cooperation and ensure an end to impunity for perpetrators of atrocities.47

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

1. 1.

   Human Rights Watch, Basic Facts on Universal Jurisdiction (Oct. 19, 2009), 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. Art. 5

   (noting, however, its ability to adjudicate the crime of aggression remains theoretical). ↩

5. 5.

   Monique Cormier, Universality as a Legal Basis for ICC Jurisdiction, in The Jurisdiction of the International Criminal Court over Nationals of Non-States Parties 159 (Aug. 6, 2020), paywall, doi

   (discussing the validity of universal jurisdiction as an acceptable basis for the Court’s authority but ultimately concluding that there is no advantage to characterizing the ICC’s authority as arising from any universality model rather than treaty created, delegated jurisdiction). ↩

6. 6.

   Rome Statute, supra note 3, at Preamble. ↩

7. 7.

   International Criminal Court, Understanding the International Criminal Court 11 (2020) [hereinafter Understanding the ICC], available online. ↩

8. 8.

   See generally, Valérie Paulet, Trial International, Evidentiary Challenges in Universal Jurisdiction Cases (2019), available online. ↩

9. 9.

   See Mohamed Ali Samantar v. Bashe Abdi Yousuf et al., 560 U.S. 305 (Jun. 1, 2010), available online.

   (In this case the United States Supreme Court dismissed an Alien Tort Act claim involving a high-ranking former Somalian official accused of torture, reasoning that even after overcoming the petitioner’s immunity defense on jus cogens grounds, it would be impossible for the accused to mount a fair defense without joining the government of Somalia and its current head of state—who would be entitled to sovereign immunity. While this case pertained to a civil matter brought in the United States—a nation that is generally averse universal jurisdiction—it highlights the procedural complexity that can arise when national courts seek to apply universal jurisdiction in criminal matters). ↩

10. 10.

    Sudan Says Will “Hand Over” al-Bashir to ICC for War Crimes Trial, Al Jazeera, Aug. 12, 2021, available online.

    (This has been a major issue facing the ICC, where they simply cannot prosecute due to failing to secure the extradition of an accused. For example, former Sudanese President Omar al-Bashir has been under ICC indictment for over twelve years for genocide and other Article 5 Crimes. As of this writing, the ICC has failed to secure his extradition to the Hague for prosecution. This is despite an agreement with the country’s new leadership and rebels, following a coup d’état, to ratify the Rome Statute and hand over al-Bashir. He remains imprisoned locally on comparatively minor corruption charges). ↩

11. 11.

    See also, Christopher Keith Hall, Amnesty Int’l, Universal Jurisdiction: The Challenges for Police and Prosecuting Authorities 11–17 (Jun. 2007), available online. ↩

12. 12.

    Rome Statute, supra note 3, at Art. 93(10). ↩

13. 13.

    Id. ↩

14. 14.

    Definition of Pro hac vice, Wex, available online (last visited Aug. 29, 2023). ↩

15. 15.

    Rome Statute, supra note 3, at Art. 93(10). ↩

16. 16.

    Id. ↩

17. 17.

    Id. Art. 34. ↩

18. 18.

    Id. Art. 42(1). ↩

19. 19.

    Id. Art. 43. ↩

20. 20.

    Understanding the ICC, supra note 7, at 17. ↩

21. 21.

    Rome Statute, supra note 3, at Art. 93(10). ↩

22. 22.

    Understanding the ICC, supra note 7, at 20. ↩

23. 23.

    Id. at 9. ↩

24. 24.

    Id. at 21. ↩

25. 25.

    In civil law jurisdictions, the prosecutor is more of an organ of the court, often working hand-in-hand with the judge to make the State’s case. In contrast, in common law jurisdictions, which are typically more adversarial, the judge is supposed to be a neutral referee. The insistence on the OTP being an independent organ that wields large powers, yet is not serving in a judicial capacity, may stem from the compromises that went into drafting the Rome Statute. ↩

26. 26.

    Though some, including former Prosecutor Luis Moreno-Ocampo, regard the ICC as a confederation of sorts. ↩

27. 27.

    Rome Statute, supra note 3, at Art. 93. ↩

28. 28.

    Id.

    (Similarly, if a perpetrator resided in the territory of a State Party and the ICC was unable to compel extradition, the same analysis would apply). ↩

29. 29.

    Id. at Preamble ¶¶ 5–6. ↩

30. 30.

    See id. Art. 53(1)(c), Art. 53(2)(c).

    (This theme is woven throughout the Rome Statute, in particular around indictment and issues of prosecutorial discretion where it serves as the standard against which the OTP is supposed to weigh whether or not to bring a case). ↩

31. 31.

    Id. Art. 93(10)(a). ↩

32. 32.

    Id. Art. 93(10)(c) (emphasis added). ↩

33. 33.

    Id. Art. 96. ↩

34. 34.

    Id. Art. 67(1). ↩

35. 35.

    Id. Art. 67(2). ↩

36. 36.

    This is especially true in an adversarial system of law, such as in the United States or United Kingdom, comparatively to France and other jurisdictions that follow inquisitional systems of law. As prosecutors in adversarial jurisdictions are often incentivized to achieve justice by any means necessary including taking advantage of procedural advantages that allow for the suppression of inadmissible evidence. ↩

37. 37.

    Hall, supra note 11, at 17

    (discussing that this is especially relevant when evidence is sourced from transitional governments). ↩

38. 38.

    Rome Statute, supra note 3, at Art. 93(10). ↩

39. 39.

    Id. Art. 93(10)(b). ↩

40. 40.

    See Universal Jurisdiction: Accountability for U.S. Torture, CCR (Sep. 8, 2021), available online (last visited Aug. 29, 2023). ↩

41. 41.

    Rome Statute, supra note 3, at Art. 69(8). ↩

42. 42.

    Some States, such as South Africa, explicitly incorporate international law into their body of law. ↩

43. 43.

    Id. Art. 93(10)(a). ↩

44. 44.

    Jenia Iontcheva Turner, Transnational Networks and International Criminal Justice, 105 Mich. L. Rev. 985, 987–88 (Mar. 2007), available online

    (advocating for supranational prosecutors to help overcome the “globalization paradox”). ↩

45. 45.

    Scott Beazley, Nicholas Cowdery & Pierre Rosario Domingue, The Status and Role of Prosecutors, UNODC (Nov. 2014), available online. ↩

46. 46.

    Rome Statute, supra note 3, at Art. 42(5). ↩

47. 47.

    Id. at Preamble. ↩