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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?”

Using Development Banks to Implement Complementarity

I. Introduction

The principle of complementarity, specifically positive complementarity focuses on providing collaborative assistance from the International Criminal Court (ICC). While a core goal of the Rome Statute is for the ICC to work complementary to national criminal jurisdictions, this is not always successfully implemented. Specifically, nations such as those in Sub-Saharan Africa that do not have resources, the legal framework, or infrastructure are often unable to try ICC eligible crimes domestically. As the ICC is often overwhelmed and lacks the capacity to try the high volume of eligible cases, empowering states to try their own cases is of key importance. One solution to this problem is the use of regional organizations. Regional organizations have served many roles and purposes to support nations. A specific example of a regional organization that could help implement complementarity are development banks. These development banks exist to provide capital for investment and assistance in countries. An arguably successful development bank is the Asian Development Bank (ADB). The ADB has implemented rule of law programs in addition to providing technical assistance training throughout Asian and Pacific regions. This model could be used as a blueprint by the African Development Bank (AfDB) with the ICC to create the legal framework and build the necessary infrastructure to successfully try crimes domestically.

The principle of complementarity was introduced by the Rome Statute in the Preamble and Article 1 and gives that the ICC “shall be complementary to national criminal jurisdictions.”1 This complementarity concept allows the ICC to work in conjunction with jurisdictions both domestically and internationally to prevent criminal activity. Further, the principle enables the judicial systems to preserve the responsibility of trying alleged perpetrators.2 Per Article 17 of the Rome Statute, cases are only admissible at the ICC when the “State is unwilling or unable genuinely to carry out the investigation or prosecution.”3 Where “unwilling” may occur when a state has shielded an individual from their responsibility for triable ICC crimes and “unable” may occur when a state’s legal system is ill-equipped or collapsed.4 Accordingly, at the outset, a goal of complementarity was to balance state sovereignty with those who wanted to try a case in a court with universal jurisdiction.5 Moreover, other benefits and reasoning for complementarity have been noted such as:

  1. the protection of the accused if they have been previously prosecuted before national courts;

  2. promotion of efficiency given the ICC is not equipped to handle all serious crime cases; and

  3. placing the responsibility on states to investigate and prosecute alleged crimes.6

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Over the years, the ICC has struggled to meet lofty expectations, including the sheer volume of cases expected to be tried.7 Even the ICC Chief Prosecutor Luis Moreno-Ocampo has recognized the ICC shortcomings and has suggested a more active and collaborative approach with national courts.8 Accordingly, the idea of positive complementarity has emerged as a refined form of the principle of complementarity focused on collaborative assistance provided by the ICC. In 2006, the Office of the Prosecutor (OTP) outlined the positive approach as encouraging authentic state proceedings “where possible; relies on national and international networks; and participates in a system of international cooperation.”9 While the traditional complementarity principle was based in the theory that states would be implored to try their own crimes in order to avoid ICC intervention, positive complementarity aims to increase the capability of states to try crimes domestically. A “carrot-and-stick” approach has been suggested for implementation of positive complementarity. This approach mirrors the traditional theory that States will be encouraged to try their own cases to avoid ICC intervention; however, unlike the traditional complementarity approach, positive complementarity means the ICC would work directly with States Parties and highlight concerns through public channels to motivate a state to try the case.10 Notably, this approach may be more effective where a state has the domestic capacity to try a case but falls into the “unwilling” category. In contrast, for states that lack domestic capacity, the “carrot-and-stick” approach may not be effective. These states do not lack motivation to try cases, rather they need domestic capacity and infrastructure.

While the ICC can provide assistance in some ways to promote states trying their own cases, it is abundantly clear the ICC needs both resources and credibility11 to effectively implement positive complementarity principles. This is especially true for states that lack infrastructural ability to try cases, where the need for resources is even greater. In order to combat this need, the ICC has worked to “continue expanding its network of contacts with non-States Parties, international organisations and NGOs aimed at fostering a supportive environment”;12 however, the problem still persists for states that lack ability to try cases. While there are a broad range of NGOs, it can be argued the utilization of non-profit development banks could be envisioned as a route for implementation of rule of law for states that fall into the “unable” category and are in need of domestic capacity.

Currently, there are 123 States Parties to the Rome Statute.13 Of the 123 countries, 43 are Western, European, and other states, 33 are African States, 19 are Asia-Pacific States, and 28 are Latin American and Caribbean States.14 With such state diversity, there are wide domestic capacity differences between the member states which present unique challenges for solution implementation. To narrow this discussion and propose an effective solution, though there are a broad range of states that may fall into the “unable” category, this argument will focus on development bank application in African nations.

II. Development Bank History and Exemplary Implementation

A development bank is a “national or regional financial institution designed to provide medium—and long-term capital for productive investment, often accompanied by technical assistance, in poor countries.”15 Development banks are widespread with notable banks including the World Bank, the ADB, the European Investment Bank, the European Bank for Reconstruction and Development (EBRD), the Inter-American Development Bank Group (IDB), Development Bank of Latin America, and the AfDB.16 Within this group, there are multilateral development banks such as the World Bank and then regional development banks (RDBs) such as the AfDB, ADB, EBRD, and IDB. RDBs are “multilateral financial institutions that provide financial and technical assistance for development in low—and middle-income countries within their regions.”17

A. Exemplary Asian Development Bank

An example of a successful development bank is the ADB. The ADB was established in 1966.18 During this time, the Asia and Pacific regions were experiencing poverty and pervasive, systematic change.19 Notably, at the time of its establishment, Asia was the “poorest region in the world with an annual per capita income of about $100” which was less than a fourth of Latin America and less than Sub-Saharan Africa. Yet today Asia is a top leader in gross domestic production.20 The ADB focuses on “multilateralism, development, and its role as a bank.”21 This means that partners and members of the institution are from non-regional countries and international areas in addition to the Asia and Pacific region.22 The primary banking function of the ADB is to mobilize funds to support development programs and projects in countries that are members.23 In addition to economic development, the Office of the General Counsel manages a Law and Policy Reform (LPR program) as of 1995.24 The premise of the LPR program is that:

[A] functioning legal system is essential to sustainable development. Such a system is anchored on the Rule of Law and comprises a comprehensive legal framework and effective judicial, regulatory, and administrative institutions that establish, implement, and enforce laws and regulations fairly, consistently, ethically, and predictably.25

The ADB advertises LPR program success in varying legal areas such as environmental, infrastructural, financial, private sector, and public interest law.26 While these areas do not necessarily cover crimes that are triable at the ICC, rule of law programs covering financial institutions crimes such as securities law and money laundering can still help inform solutions for rule of law programs that could cover ICC crimes in African nations.

1. Solomon Islands and Vanuatu

A first example of a successful ADB rule of law program implementation is securities law development in the Solomon Islands and Vanuatu. The Solomon Islands joined the ADB as a new member in 1973 and Vanuatu joined in 1981.27 On a broad legal scale, prior to ADB programs, laws in these countries were not codified. Lawyers and scholars cited to inaccessible case law, resource cost for its application, challenges for keeping it current, and “remoteness of English law from Pacific conditions.”28 Furthermore, common law had been adopted from a variety of sources including the UK, Australia, NZ, and other common law jurisdictions.29 With respect to securities law specifically, the Solomon Islands and Vanuatu faced additional challenges.

The ADB recognized the need for secured transactions reform given individuals in the Pacific region struggled obtaining credit and conducting business suffered.30 In both Solomon Islands and Vanuatu, the secured lending legal framework was rooted in common law or statutes from English law.31 ADB studies conducted prior to reform identified issues with costly legal forms associated with land ownership and title obstacles in both nations.32 While registries existed, they were not reliable or had limited information available. The ADB also gathered information on the comprehensive challenges that these nations faced such as individual and group borrowing limitations, costly legal fees that came with loan documents which required a lawyer, expensive enforcement cost, and lawyers being needed to manually search for paper-based registries amongst other problems.33 In 2008, under initiatives such as Pacific Private Sector Development Initiative,34 the Solomon Islands enacted the Secured Transactions Act (STA) and Vanuatu enacted the Personal Property Security Act (PPSA). Pursuant to the reformed acts, secured lending law was simplified and accomplished establishment of electronic registries and priority rules for competing claims to collateral. While the acts were similar, they had key differences that corresponded to the individual nation’s needs. Though the reform is ongoing, both nations have had greatly improved and simplified secured transactions law that has allowed business and individuals to achieve greater economic development.

2. Money Laundering Reform in Mongolia

In addition to secured transactions reform, the ADB has worked to tackle anti-money laundering and financing terrorism with its members. In 1991, Mongolia joined the ADB as a member.35 Historically, Mongolia struggled with financial corruption and was noted to provide a “fertile environment for criminality and money laundering.”36 In 2011, initial discussions financed by the Cooperation Fund for Regional Trade and Financial Security Initiative, commenced between Mongolia’s government and the ADB to develop technical assistance (TA).37 To develop TA, the ADB first began to tackle the reform through identifying the key issues. The overarching issue was Mongolia’s lack of capacity in its judiciary, prosecutorial, and law enforcement agencies. The ADB broke this down into several driving factors for this lack of capacity including:

  1. Concerns with influx of illegal international funds;

  2. General lack of understanding for handling money laundering crimes;

  3. Lack of specialized investigators and prosecutors with training for economic crimes;

  4. Weak compliance with anti-money laundering and combating the financing of terrorism (AML/CFT) international standards as identified by the Financial Action Task Force (FATF). This resulted in being placed on the “grey list”;

  5. General corruption such as smuggling and tax evasion; and

  6. No previous successful prosecution of money laundering crimes despite having investigated money laundering and financing offenses.38

Upon determination of key issues behind Mongolia’s money laundering weaknesses, the ADB implemented a multi-faceted TA program. This program included:

  1. The TA helping train ~40 officers from law enforcement authorities;

  2. Providing international and domestic legal expert and law enforcement consultants; and

  3. A design and monitoring framework with outlined performance targets, data sources, risk assumptions, and activities with milestones.39

Furthermore, in October 2019 Mongolia partnered with additional development and donor nations to implement policies for AML/CFT.40 This enhanced effort included additional sector professionals such as accountants, lawyers, and dealers in stones/metals, amongst others.41 Similar to the Solomon Islands and Vanuatu programs, the TA training in Mongolia was measurably successful. By 2020 Mongolia was taken off the FATF’s “grey list”.

3. AML/CFT Regime in Tajikistan

In 2014, the National Bank of Tajikistan requested TA from the ADB to strengthen their AML/CFT regime.42 Much like the TA program for Mongolia, the ADB first assessed the underlying risks Tajikistan faced. The TA provided:

  1. A national risk assessment;

  2. Legal and regulatory changes needed to combat gaps with new FATF recommendations;

  3. An enhanced AML/CFT control system; and

  4. Expertly trained staff.43

The ADB accomplished the TA through providing international AML/CFT and international and domestic legal experts to train the necessary Tajikistan individuals. While this had an overall similar implementation and successful outcome to Mongolia, a notable issue the ADB faced in Tajikistan was change of key personnel throughout the TA. Specifically, the Deputy Chairman for the National Bank of Tajikistan, the Assistant to the President on Legal Issues, and the Director of Financial Monitoring Department were all replaced during the implementation period.44 The ADB highlighted things they learned and would have done differently such as having a transition arrangement agreed upon in advance to avoid needing to seek re-agreement.

III. Use of Development Bank in Sub-Saharan Africa

A. Unique Considerations in African Nations

Much like the first step in the Solomon Islands and Vanautu was identifying key obstacles such as lack of common law, challenges unique to Sub-Saharan Africa must be identified. Once identified, they can be addressed so that the African Development Bank could be utilized to develop legal infrastructure to try ICC eligible crimes. While each individual African state will have distinctive challenges for application, looking to various nation’s common systematic judicial histories and struggles,45 can be informative.

Throughout Africa there is a wide range of legal traditions which are impacted by culture, colonial history, religion, etc.; however, researchers have highlighted parallels in legal systems prior to colonialization across the continent. Specifically:

The legal system in pre-colonial Africa aimed at maintaining balance and harmony, and was based on a communitarian as opposed to individualistic approach to the relationship of individuals to the larger community.46

Notably, this approach is ideologically based in “balance and harmony” over the traditional western theories of retribution and preventative criminal justice.

In addition to ideological differences, African nations face significant resource constraints in comparison to the resources available to the modern day ADB and its member states. According to the World Bank, the current Sub-Saharan African GDP per capita is 1645.5.47 In comparison, a nation like the United States has a GDP per capita of 69,287.5.48 Additionally, East Asia and the Pacific have a GDP per capita of 13,037.5.49 These differences can help guide proper implementation of development bank utilization in Sub-Saharan Africa.

B. Bank Implementation Proposal in African Nations

The ADB discussion provided examples of countries that needed policy reform (Solomon Islands and Vanuatu) versus nations that needed TA (Mongolia and Tajikistan). The challenges in Sub-Saharan Africa above demonstrate a compounding need for both policy reform and TA which can be guided by a combination of the ADB examples. The AfDB already exists to mobilize and allocate resources for the investment in regional member countries and provide policy advice and technical assistance to support development efforts in Africa.50 Given the infrastructure for policy reform and TA already exists through the AfDB, the ICC could utilize the AfDB to build upon the existing structure to develop ability to try ICC eligible crimes throughout Sub-Saharan Africa.

1. Policy Reform

First, the ICC could work with the AfDB to establish policy reform using Solomon Islands and Vanuatu as a guide. Like was done in the STA and PPSA, there could be similar acts adopted throughout Africa with variances for key cultural or political needs. Modifying to adapt for local needs while retaining the majority of the policy reform, once drafted, would reduce expense, reduce time needed to develop policies for multiple Sub-Saharan African nations, and create legal stability and consistency for trying cases. ADB’s model for bringing in legal experts to help develop and draft the policy reform could be followed.

2. Technical Assistance

In addition to policy reform, the AfDB could implement technical assistance training of judiciary, prosecution, and law enforcement to handle criminal cases under the new policies as reformed. Notably, the model used in both Mongolia and Tajikistan could be followed by the AfDB. This includes first identifying the weaknesses and needs of the nation and then:

  1. Training authorities,

  2. Providing both domestic and international legal consultants,

  3. Providing both domestic and international law enforcement consultants, and

  4. Working with other donors and field experts as needed.

Additionally, Tajikistan can be uniquely informative given political and personnel instability in Africa. The AfDB could ensure that transition arrangement could be agreed upon in advance to avoid needing to seek re-agreement in instances of instability.

IV. Conclusion

The use of development banks poses a distinctive solution opportunity for nations in need of legal infrastructure and development. While the use of development banks may not pose a solution to implement complementarity in all ICC member states, these regional organizations are positioned to be able to part of the solution in implementing the principle of complementarity in developing nations. The success of the Asian Development Bank in Asia and Pacific regions offers a model for the ways in which development banks can provide rule of law programs and technical assistance to nations in need. Furthermore, the various projects that the ADB has helped to implement across several nations can guide solution implementation throughout Sub-Saharan Africa with the AfDB. Using the ADB model in combination with expertise from those specializing in Sub-Saharan African needs, the AfDB could be used to create rule of law programs and provide technical assistance training to Sub-Saharan nations. These programs and technical assistance could provide the foundation for Sub-Saharan nations being able to try crimes domestically rather than being reliant on the ICC.

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

  1. 1.

    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], Preamble, Article 1 available online. ↩

  2. 2.

    International Criminal Court, Understanding the International Criminal Court (Aug. 22, 2013), available online. ↩

  3. 3.

    Rome Statute, supra note 1, at Art. 17. ↩

  4. 4.

    Olympia Bekou, Complementarity Principle, Oxford Bibliographies (Jun. 25, 2013), paywall, doi. ↩

  5. 5.

    Benjamin N. Schiff, Building the International Criminal Court 73 (2008), paywall, doi. ↩

  6. 6.

    Paul Selis, ICTJ, Handbook on Complementarity (2016), available online. ↩

  7. 7.

    How can the ICC Maximize its Crime Prevention Impact?, ICC Forum (Oct. 6, 2011), available online; see also Daniel Trachsler, The ICC: High Expectations, Ambiguous Record, 130 CSS 1 (Mar. 2013), available online. ↩

  8. 8.

    Luis Moreno-Ocampo, ICC Prosecutor, Statement to Diplomatic Corps. (Feb. 12, 2004), available online. ↩

  9. 9.

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

  10. 10.

    Katharine A. Marshall, Prevention and Complementarity in the International Criminal Court: A Positive Approach, 17 Hum. Rts. Br. 21 (2010), available online. ↩

  11. 11.

    Aaron Gray-Block, Lacking State Support, ICC in Need of Credibility, Reuters, Jun. 12, 2010, available online. ↩

  12. 12.

    Report on Prosecutorial Strategy, supra note 9. ↩

  13. 13.

    The States Parties to the Rome Statute, ASP, available online (last visited Aug. 30, 2023). ↩

  14. 14.

    Id. ↩

  15. 15.

    Development Bank, Encyclo. Britannica, available online (last visited Aug. 30, 2023). ↩

  16. 16.

    Adrian Lawrence & Harriet Gray, Multilateral Lenders and Regional Development Banks, Proj. Fin. L. Rev. (Aug. 9, 2023), available online (last visited Sep. 1, 2023). ↩

  17. 17.

    Jenny Ottenhoff, CGD, Regional Development Banks (2011), available online. ↩

  18. 18.

    Asian Development Bank, ADB Through the Decades: ADB’s First Decade (1966–1976) (Dec. 2016), available online. ↩

  19. 19.

    Id. ↩

  20. 20.

    Structural Forces Economics, U.S. DNI, at Fig. 4: Economic Weight Shifting to Asia (Mar. 2021), available online. ↩

  21. 21.

    Peter McCawley, ADB, Banking on the Future of Asia and the Pacific: 50 Years of the Asian Development Bank 2 (2d ed. 2017), available online. ↩

  22. 22.

    Id. ↩

  23. 23.

    Id. at 6. ↩

  24. 24.

    Office of the General Counsel, ADB, Law and Policy Reform Program: Effective Legal Systems for Sustainable Development (2016), available online. ↩

  25. 25.

    Id. at 2. ↩

  26. 26.

    Id. at 4. ↩

  27. 27.

    Id. at 101. ↩

  28. 28.

    Fred Ellinghaus & Ted Wright, ADB, Reforming Pacific Contract Law (Aug. 2009), available online. ↩

  29. 29.

    Id. ↩

  30. 30.

    Paul Holden, Melissa Dayrit, Alma Pekmezovic & Terry Reid, ADB, Unlocking Finance for Growth: Secured Transactions Reform in Pacific Island Economies (2014), available online. ↩

  31. 31.

    Id. at 12. ↩

  32. 32.

    Id. ↩

  33. 33.

    Id. ↩

  34. 34.

    Pacific Private Sector Development Initiative, Business Law Reform (Dec. 2016), available online.

    (The Pacific Private Sector Development Initiative (PSDI) is co-financed by ADB, the Government of Australia, and the Government of New Zealand and was developed to help fourteen Pacific members achieve sustainable economic growth through business reform. Specifically, “PSDI’s team of experts provides a range of technical assistance that promotes private sector development in the region. This includes specialized support in the areas of business law reform, access to finance, reforming state-owned enterprises, establishing public—private partnerships, the economic empowerment of women, and promoting competition.”). ↩

  35. 35.

    McCawley, supra note 21, at 204. ↩

  36. 36.

    Casals & Associates, Contractors to USAID, Assessment of Corruption in Mongolia (Aug. 31, 2005), available online. ↩

  37. 37.

    Asian Development Bank, Mongolia: Strengthening the Anti-Money Laundering Regime (Dec. 2012), available online. ↩

  38. 38.

    Id. at 2. ↩

  39. 39.

    Id. at 4–5. ↩

  40. 40.

    Declan Magee & Carlo Antonia Garcia, ADB Blog, How Did Mongolia Get Off the Money Laundering Watch List in Record Time? (Dec. 11, 2020), available online. ↩

  41. 41.

    Id. ↩

  42. 42.

    Ma. Celeste Grace A. Saniel-Gois, ADB, Tajikistan: Strengthening the Anti-Money Laundering Regime (Jan. 2020), available online. ↩

  43. 43.

    Id. at 3. ↩

  44. 44.

    Id. at 4. ↩

  45. 45.

    John Mukum Mbaku, International Justice: The International Criminal Court and Africa, 2014 Foresight Afr. 9 (Dec. 20, 2013), available online. ↩

  46. 46.

    Samuel O. Manteaw, John Mensah Sarbah and African Value Systems in Legal Education, 27 UG L.J. 58, 75 (2014), paywall. ↩

  47. 47.

    GDP Per Capita, All Countries and Economies, The World Bank, available online (last visited Aug. 30, 2023). ↩

  48. 48.

    Id. ↩

  49. 49.

    Id. ↩

  50. 50.

    Mission & Strategy, AFDB, available online (last visited Aug. 30, 2023). ↩

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