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- jordynyian: I. Introduction Universal criminal jurisdiction allows any nation to prosecute serious international crimes. Although universal criminal jurisdiction exists under the current state of international criminal law, its decentralized nature has proven to be a weakness. This current lack of international cooperation can be resolved through the development of transgovernmental networks. However, implementation of successful transgovernmental networks is... (more)
- Alexandra Speed: Regional Organizations as Partners in Complementarity: An Exploration of the AU, ASEAN, & Arab League of States’ Roles in Implementing Complementarity I. Introduction Regional organizations like the African Union, Association of Southeast Asian Nations, and the Arab League of States have the opportunity to assist the international community by implementing the principle of complementarity. Although, there... (more)
- Regina Campbell: How TikTok Can Save the World—Regional Organizations’ Role in Joining Social Movements to Ensure Compliance With International Law In this comment, I argue that the role of regional organizations in Africa can aid in implementing the principle of complementarity by aligning themselves with social movements that create a culture of domestic prosecution and pressure States to exercise jurisdiction over mass atrocities. In Part I, I define complementarity... (more)
- Zishan Yu: Promotion of Universal Jurisdiction: With Experts One-to-One Introduction This comment discusses how to promote universal jurisdiction. By arguing for the importance of universal jurisdiction and comparing different situations faced by countries, this comment discusses problems we face when introducing universal jurisdiction to the world. In China, for example, an important principle in criminal law is “No crime without law making it so; no... (more)
- mahak jain: The comment attempts to reimagine the frameworks of the principle of complementarity under the Rome Statute in correlation with the sub-Saharan African context. The comment advances the debate over the role of the International Criminal Court (ICC) and the African Court of Justice and Human Rights (ACJHR) with the incoming of the amendments to the Protocol on the Statute of the ACJHR titled as the Malabo Protocol.1 I aim to shed... (more)
- SydneyRobles: I. Introduction International law increasingly recognizes that States have a moral and legal duty to hold perpetrators of grave international crimes accountable.1 To fulfill this duty, a number of States have adopted universal jurisdiction laws empowering national courts to assert jurisdiction over select crimes based solely on their heinous nature, without any connection to the State.2 This Comment conducts a comparative analysis of German,... (more)
- hglembo: 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.... (more)
- jordynyian: I. Introduction Under the principle of complementarity, the International Criminal Court (ICC or the Court) is intended to function solely as a court of last resort when courts of the national jurisdiction where crimes occurred are unable to genuinely investigate and prosecute these crimes. As part of their genuine efforts, national jurisdictions must also sufficiently address victims’ rights. However, under the current state of... (more)
- Dalia: I. Introduction The principle of universal jurisdiction provides for a state’s jurisdiction over crimes against international law even when the crime did not occur on that state’s territory, and neither the victim nor perpetrator is a national of that state (thus ruling out the exercise of jurisdiction through the principles of nationality, passive personality, and territoriality).1 This, thus, allows national courts in third countries... (more)
- aalmaguer: How Regional Organizations Can Support Complementarity: The Asian Development Bank and Judicial Reform Introduction The principle of complementarity requires institutional capacity at the national level to prosecute the crimes set forth by Article 5 of the Rome Statute (Article 5 Crimes). The International Criminal Court (ICC) was designed to be a court of last resort, not the only court. Of... (more)
- Dalia: I. Introduction The principle of complementarity aims at granting jurisdiction to a subsidiary body when the main body fails to exercise its primacy jurisdiction.1 In the case of the International Criminal Court (ICC), this would mean interfering only when the national jurisdiction was unwilling or unable to prosecute pursuant to Article 17 of the Rome Statute.2 One of the major issues that the... (more)
- arvind2024: Universal Jurisdiction and Horizontal Complementarity I. The Problem with Universal Jurisdiction As the prompt for this question notes, states are becoming increasingly comfortable trying cases under universal jurisdiction. Yet, universal jurisdiction remains a frequently debated issue because its exercise involves infringing traditional state sovereignty.1 When a state invokes universal jurisdiction, it may exercise jurisdiction... (more)
- Regina Campbell: Victim Over Verdict—How Exercising Universal Jurisdiction Means Promoting the Interests of Victims of International Atrocities In this comment, I argue that in order to exercising universal jurisdiction, the International Criminal Court’s (ICC) Office of the Prosecutor (OTP) should prioritize the interests and desires of the victims of international atrocities. In Part I, I explain why the OTP should... (more)
- SydneyRobles: I. Introduction The principle of complementarity is a cornerstone of the Rome Statute and the International Criminal Court (ICC). Under this design, the ICC will only intervene in “exceptional” circumstances where states fail to investigate and prosecute international crimes.1 Since its inception, the ICC has opened investigations in nine African States.2 A number of... (more)
- DevinYaeger: How Can the International Criminal Court Help National Courts Implement Universal Jurisdiction: Potential Applications and Pitfalls Arising from the Article 93 Cooperation I. Introduction In recent years, there has been renewed interest in countries exercising universal jurisdiction, i.e., the prosecution of foreign nationals for serious crimes unrelated to the prosecuting nation other than their offensiveness or threat to... (more)
- james2024: Regional Complementarity: Mutually Beneficial Collaboration between Regional Courts and the ICC I. Introduction The International Criminal Court (ICC) is a unique forum for international justice, as the only international court charged with prosecuting individuals for genocide, crimes against humanity, war crimes, and the crime of aggression.1 Despite its unique place in international justice, the Court has long faced... (more)
- Zishan Yu: A Win-Win Situation: Cooperation Between the International Criminal Court and Regional Organizations I. Introduction This comment addresses the challenges that the International Criminal Court (ICC) faces in today’s rapidly changing world. Some people are disappointed that only a few perpetrators have been tried by the ICC, and that the vast majority have so far escaped consequences for their crimes. Some countries... (more)
- mahak jain: The success of the International Criminal Court (ICC) revolves around its jurisdictional structure and the complementarity component of its legal system and it may very well be quantifiable by how few situations the Court will have to prosecute.1 This is not because of the quixotic belief that the ICC can serve as a better court of law and custodian of world peace and justice, but because of its default... (more)
- hglembo: ICC as a Partner for States Trying Universal Jurisdiction Cases I. Introduction As a greater number of states try universal jurisdiction-based cases, it is apparent that the International Criminal Court (ICC) should make itself a better partner for these states. Universal jurisdiction allows states to try crimes, similar to those outlined in the Rome Statute,1 no matter where the crime occurred or... (more)
- Alexandra Speed: Universal Jurisdiction’s Universal Issues: Solutions for the States by the ICC I. Introduction Universal jurisdiction is an element of international law that is frequently exercised by many countries across the world. It is most generally exercised by states that have an interest in seeing perpetrators of international crimes brought to justice. It has recently been exercised by Germany prosecuting Syrian officials and... (more)
- aalmaguer: Helping States Pursue Investigations Under Universal Jurisdiction: Proposed Role for the International Criminal Court and Interpol Introduction At a fundamental level, a state needs three things to pursue a criminal investigation through universal jurisdiction: existing national laws or legislation authorizing the exercise of universal jurisdiction over the specific crime, political will to apply those laws and pursue... (more)
- arvind2024: 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... (more)
- james2024: Expanding the Landscape of International Justice: Obstacles to Universal Jurisdiction and the Potential Role of the ICC I. Introduction Since its inception in 1998, the International Criminal Court (ICC) has aimed to bring justice to the gravest international crimes in the world. The Court is the first and only permanent international criminal court with the jurisdiction to investigate and prosecute individuals for genocide... (more)
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?”
How TikTok Can Save the World—Regional Organizations’ Role in Joining Social Movements to Ensure Compliance With International Law
In this comment, I argue that the role of regional organizations in Africa can aid in implementing the principle of complementarity by aligning themselves with social movements that create a culture of domestic prosecution and pressure States to exercise jurisdiction over mass atrocities. In Part I, I define complementarity, describe its importance and explain why complementarity is not being implemented effectively in Africa. Specifically, I demonstrate that multiple African nations have relied on the International Criminal Court (ICC) to step in and handle prosecutions rather than engaging in domestic prosecutions for mass atrocities. In Part II, I describe what regional organizations are, how regional organizations in Africa have been ineffective at implementing complementarity, and suggest regional organizations use social media to create a culture of domestic prosecutions in Africa.
I. Complementarity and Its Failure in African Nations
A. What Is the Principle of Complementarity?
Complementarity is one of the main governing principles upon which the operation of the ICC is premised.1 The basic idea is that when a mass atrocity occurs, even one that is bad enough to fall within the jurisdiction of the ICC, it is the States’ responsibility to investigate, prosecute and/or punish the bad actors. This is because States, under the complementarity principle, have the “primary right and responsibility to investigate and prosecute”2 and to take the “first bite at the prosecutorial apple.”3 This is because States are typically physically closer to the crimes compared to the ICC and, in theory should have a larger stake in the outcome of investigations and prosecutions of perpetrators of mass atrocities that occur in their jurisdiction. Thus, under complementarity, it is only after the State fails to take action against wrongdoers that the ICC is supposed to step in to prosecute the perpetrators. Essentially, complementarity makes the ICC the “court of last resort.”4
Complementarity is not merely a theoretical principle guiding the ICC in the abstract. Rather, it appears throughout the Rome Statute. The Preamble and Article 1 states the ICC “shall be complementary to national criminal jurisdictions.”5 Complementarity is further expressed through rules on when and how cases may come before the ICC. Article 17 says the ICC may only step in if:
Article 18 says that the:
B. Why Does Complementarity Matter?
Complementarity is crucial to the success of the ICC’s express goal of ending impunity and domesticating international law. On a practical level, the ICC has limited resources.8 As such the ICC is only able to take on certain kinds of cases. They may only investigate and prosecute higher level criminals.9 This limited reach means that the ICC is only able to investigate a limited number of cases. If there is any hope for the vast number of perpetrators outside the ICC’s reach to be held accountable for their crimes, domestic courts will have to pick up the slack. Further, since domestic courts are physically closer to the criminals, the crimes, and the victims, they do not have to expend the resources required to travel back and forth to effectively conduct investigations. So, domestic courts should be more efficient than the ICC at handling investigations and prosecutions. But complementarity goes a step further than simply making logical sense. It also encourages states to comply with the Rome Statute by seeking to strike “a balance between state sovereignty and the international community’s interest”10 in prosecuting international crimes. Thus, complementarity helps to “foster the domestication of international law”11 while also respecting States’ jurisdictional rights and sovereignty.
C. Has Complementarity Failed in Africa?
Despite the undoubted importance of complementarity, some critics worry it has failed to be exercised effectively, particularly in African nations. To understand why, it is important to consider what it actually means for complementarity to succeed. According to former Prosecutor of the ICC Luis Moreno-Ocampo:
In other words, the principle of complementarity in the ICC is functioning properly when domestic courts are actually prosecuting the perpetrators of mass atrocities, rather than relying on the ICC to handle those investigations, effectuate those arrests, and ultimately carry out those prosecutions.
Given this understanding of what it means for complementarity to succeed, there is some evidence that complementarity is falling short of the mark in Africa. In her paper on compliance in the ICC, Tatiana Sainati cites ICC investigations in Uganda and Sudan as examples showing that the principle of complementarity is ineffective.13 According to Sainati, rather than initiating investigations or prosecutions of international crimes, both Uganda and Sudan instead chose to “outsource the responsibility for investigations and prosecutions to the ICC.”14 Because these nations essentially relieved themselves of the pressure of prosecuting crimes under the Rome Statute, the aforementioned goals behind complementarity, like domesticating international law or granting states their rights and responsibilities of primacy in jurisdiction, cannot be realized.
This failure was not contained to just Sudan or Uganda. Another very public example of failed complementarity in Africa occurred in connection with the 2007 post-election violence in Kenya. Following an election wherein both incumbent President Mwai Kibaki and his challenger Raila Odinga claimed victory, large-scale ethnically driven violence erupted in Kenya.15 Within two months, as many as 1220 Kenyans were killed, over 3560 injured, about 350,000 were displaced, and more than 900 acts of rape were documented.16 Under the principle of complementarity, the local Kenyan judiciary should have investigated those responsible for these atrocities and where necessary, arrested and tried the perpetrators. Instead, Kenyan lawmakers continuously rejected a recommendation to create a tribunal to prosecute those responsible for the post-election violence.17 And in spite of the fact that the Kenyan government claimed that reforms would shortly lead to domestic prosecution of the criminals connected to the post-election violence,18 the ICC ultimately issued summonses for six Kenyans (the Ocampo six as they came to be known) to appear before the Court,19 noting that the Kenyan government had failed to show that they had launched any investigations of the Ocampo Six.
To add salt to the wound that was Kenya’s perceived failure to investigate the mass violence, a number of local organizations preferred ICC intervention over domestic prosecution. In 2010, Christine Bjork and Juanita Goebertus interviewed local civil society organizations in Kenya and got a sense of how these organizations viewed the Kenyan government. They asked these organizations whether they trusted Kenya’s local judiciaries to investigate and prosecute those responsible for the post-election violence.20 The answer was an affirmative no across the board. One local non-government organization (NGO) screened a documentary which promoted the idea that the ICC, rather than the local Kenyan government, was the main option to achieve justice for victims in Kenya.21 Another NGO decided to work with local communities to educate people about the ICC’s functions. They also created a consensus about the importance of ICC intervention, citing a preference for the ICC’s intervention over domestic accountability as a result of their distrust of the Kenyan government.22 Another NGO interviewed by Bjork and Goebertus expressed their belief that the only hope for justice for the victims of the post-election violence was ICC intervention.23
Altogether, this demonstrates a failure of complementarity. A mass atrocity occurred. Hundreds of thousands of people and their families were attacked, violated, and murdered. And not only did the Kenyan government not step in to bring justice to these victims, but many of the community leaders didn’t even believe that domestic justice was possible.
II. Regional Organizations as a Potential Solution to the Failure
One potential solution to the failure of complementarity in Africa is to rely on regional organizations. Specifically, the African Court on Human right or the African Commission on Human and Peoples’ Rights (ACHPR) may be in a better position than the ICC to promote complementarity. Given their proximity to countries, they may be able to encourage States to rely on domestic courts rather than outsourcing to the ICC.
A. What are Regional Organizations?
Regional organizations are local supranational institutions who, like the ICC, work to stop mass atrocity.24 They include regional human rights commissions and courts in the Americas, Europe, and Africa. These regional institutions are the European Court of Human Rights, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the ACHPR, and the African Court on Human and Peoples’ Rights.
B. What Impact May Regional Organizations Have on States?
In their paper, James L. Cavallaro and Jamie O’Connell detail the impressive impact regional organizations have in helping to end impunity and address violations of human rights. This includes:
Domestic actors, like these regional organizations, have more success in carrying out the ICC’s goals of ending impunity and domesticating international law for a number of reasons. First, they are closer in proximity to the States, making them “better equipped than the ICC […] to contribute to complex and intertwined processes of strengthening the rule of law.”26 This is because the ICC is “located far from the places in which it operates and is staffed primarily by foreigners.”27 Second, in helping to promote domestic rather than international justice, regional organizations are:
Finally a domestic organizations’ “bottom-up” approach (as compared to the ICC’s top down approach) can guarantee better results both in terms of effectiveness of the legal institutions implemented, and in terms of their legitimacy and potential for reconciliation.29
Despite their advantages and success, regional organizations are not perfect solutions to complementarity problems. Notably, regional organizations typically lack effective enforcement mechanisms to ensure compliance with their rulings. As a result, they, like the ICC, are relying on the willingness of states to obey in order to effectuate any change.30 More specifically, African courts in particular face even more daunting challenges with respect to ability to positively impact their member States.
C. Regional Organizations in African Nations
The two main African regional human rights systems are the African Commission on Human Peoples’ Rights (the Commission) and the African Court on Human and Peoples’ Rights (the Court). The Commission and Court oversee Member States’ compliance mainly with the African Charter on Human and Peoples’ Rights which entered into force in 1986.31 Fifty-four States are parties to the African Charter and all are members of the African Union, except Morocco.32 While the Commission and the Courts have different functions, they fail to contribute to human rights in similar ways. Even though the commission is responsible for evaluating individual complaints of human rights violations by State parties, States largely ignore the Commission when it finds them to have violated human rights in particular cases and recommends remedies.33 Further, while the Court is supposed to strengthen the human rights protection system in Africa, it has not yet played a significant role in preventing atrocity crimes. According to Cavallaro and O’Connell, “the Court has not issued an advisory opinion or merits decision in a contentious case that is relevant to atrocity crimes.”34
Cavallaro and O’Connell hypothesize many reasons for the failures of the Court and Commission, including:
They also argue that the Court simply lacks the necessary influence over States to ensure they will comply with their orders.36
Regardless of the reasons behind these failures, they seem to put African regional organizations in a bind with respect to their ability to make complementarity function ideally. Due to their lack of trust, resources, and legitimacy, it is difficult for African regional organizations to effectively address human rights violations and mass atrocities. As a result, when atrocities like the 2007 post-election violence occur and African regional organizations cannot step in to help, local NGOs are forced to rely on the ICC, which undermines the success of complementarity. To have an impact on complementarity, regional organizations must find a way to influence local government in States. And to do that, they must have the ability to compel States to actually launch the investigation into alleged perpetrators.
D. Why TikTok Can Help Regional Organizations to Improve the Success of Complementarity
One possible solution to the complementarity dilemma in African nations is to empower regional organizations, like the Court and the Commission to use social media platforms, like TikTok, Instagram, Facebook, and Twitter to spread a message that normalizes the practice of domestic courts investigating human rights violation cases. By making atrocities public, as well as highlighting local governments’ suboptimal responses to those atrocities, these organizations can create a social movement via social media. This movement can create a culture of addressing crime, which can pressure States into doing the necessary work to make complementarity function properly.
In her paper, Tatiana E. Sainati walks through a number of theories which may explain how local compliance occurs through social movements. She argues that transnational social movements promote compliance because they provide a mechanism for pressuring states to comply and compel the states in which they advocate to “adopt the beliefs and behavioral patterns” of the larger international legal culture.37 This idea is supported by Cavallaro and O’Connell who state:
The idea that a social movement may compel State action is not just a theory. Social movements and community arrangements have proven to be extremely important to assure compliance with the law, create a culture of legality, and strengthen the rule of law. For example, by raising awareness about the apartheid regime, transnational movements pressured the U.N. Security Council to impose sanctions to end apartheid.39
Social movements have also proven to have an influence on the effectiveness of courts. This impact can be seen most clearly in comparing cases of Loayza Tamayo v. Peru and Castillo Petruzzi v. Peru.40 Both cases had similar fact patterns: victims were sentenced to lengthy imprisonment by a faceless tribunal. They also had a similar response from regional courts: The Inter-American Court of Human Rights ruled in both cases that Peru had violated the victims’ rights. However, the results were drastically different. Whereas Peru complied within a month in the Loayza Tamayo case, Peru refused to comply with the judgment in the Castillo Petruzzi case. One key difference between the two was how the public viewed the cases. Loayza Tamayo’s arrest and subsequent detention engendered widespread support and attention from the media and the broader public within and beyond Peru, but there was no such support in the Castillo Petruzzi case.41 Here, the social movement made all the difference. Social movements have been able to assist in the process of interaction, interpretation, and internalization necessary to promote compliance with international principles. And when those social movements are less active, the legitimacy of the court is reduced.
If the public believes strongly enough in a cause, they will back it. Therefore, one method for regional organizations, like that in African countries, to contribute to complementarity is to use social media platforms to build public awareness of atrocities and public support for local governments to address that support.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Mohamed M. El Zeidy, The Principle of Complementarity: A New Machinery to Implement International Criminal Law, 23 Mich. J. Int’l L. 869, 870 (2002), available online. ↩
Christine Bjork & Juanita Goebertus, Complementarity in Action: The Role of Civil Society and the ICC in Rule of Law Strengthening in Kenya, 14 Yale Hum. Rts. & Dev. L.J. 205, 210 (2011), available online. ↩
Tatiana E. Sainati, Divided We Fall: How the International Criminal Court Can Promote Compliance with International Law by Working with Regional Courts, 49 Vand. J. Transnat’l L. 191, 201 (Jan. 2016), available online. ↩
Mehdi J. Hakimi, The International Criminal Court’s Afghan Dilemma: Complementarity and the Quest for Justice in Afghanistan, 60 Colum. J. Transnat’l L. 315, 321–22 (2022), available online. ↩
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, Art. 1, available online. ↩
Sainati, supra note 3, at 203
(citing Rome Statute, Art. 17). ↩
Rome Statute, supra note 5, at Art. 18. ↩
Hakimi, supra note 4, at 322. ↩
Bjork & Goebertus, supra note 2, at 211.
(“[The ICC has a] policy of prosecuting only those who are most responsible for the most serious crimes.”). ↩
Hakimi, supra note 4, at 322. ↩
Sainati, supra note 3, at 201. ↩
Bjork & Goebertus, supra note 2, at 212; quoting Luis Moreno-Ocampo, Prosecutor of the ICC, Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court (Jun. 16, 2003), available online. ↩
Sainati, supra note 3, at 206. ↩
Id. ↩
Thomas Obel Hansen, The Policy Requirement in Crimes Against Humanity: Lessons from and for the Case of Kenya, 43 Geo. Wash. Int’l L. Rev. 1, 3 (Jul. 24, 2011), available online. ↩
Charles Chernor Jalloh, Comment on ICC Decision on the Authorization of an Investigation into the Situation in the Republic of Kenya, 105 Am. J. Int’l L. 540 (2011), available online. ↩
Hansen, supra note 15, at 4. ↩
Id. at 5–6. ↩
Id. at 5. ↩
Bjork & Goebertus, supra note 2, at 215–20. ↩
Id. at 217. ↩
Id. at 216–17. ↩
Bjork & Goebertus, supra note 2, at 218. ↩
James L. Cavallaro & Jamie O’Connell, When Prosecution Is Not Enough: How the International Criminal Court Can Prevent Atrocity and Advance Accountability by Emulating Regional Human Rights Institutions, 45 Yale J. Int’l L. 1, 4 (2020), available online. ↩
Id. at 32. ↩
Bjork & Goebertus, supra note 2, at 214. ↩
Id. ↩
Id. at 210–11. ↩
Id. at 211. ↩
Sainati, supra note 3, at 220. ↩
Cavallaro, supra note 24, at 52. ↩
Id. at 52–53. ↩
Id. at 53. ↩
Id. at 55. ↩
Id. at 54–55. ↩
Id. at 56. ↩
Sainati, supra note 3, at 214–15. ↩
Cavallaro, supra note 24, at 5. ↩
Sainati, supra note 3, at 216. ↩
Id. at 221. ↩
Id. at 221–22. ↩