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:

(1) national courts are unwilling or unable to do so, (2) the crime or crimes at issue are of sufficient gravity, and (3) the person charged has not already been tried for the conduct that forms the basis of the complaint.6

Article 18 says that the:

Prosecutor may defer to a state’s investigation and review the deferral after six months or in the event of a significant change of circumstances in the state’s ability to carry out the investigation.7

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:

[S]uccess of the ICC will be judged not by its number of prosecutions, but by the number of international prosecutions avoided because of the increased functioning of domestic legal systems.12

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:

[C]reating new or modifying old laws to prevent recurrence of human rights violations, building new detention centers, training child welfare workers, creating and overseeing ethics commissions, and expanding courts’ staffs.25

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:

[M]ore likely to promote reconciliation within an affected community, establish permanent justice mechanisms capable of preventing the society from falling back into conflict, and offer a more pertinent sense of justice to victims.28

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:

[R]esource scarcity, poverty, unscrupulous leaders, weak institutions, ethnic tensions, and outside predation and the fact that no powerful bloc of African States has exerted sustained pressure on others to improve their human rights performance.35

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 people who influence whether mass atrocities occur in a particular situation include those who might commit atrocities (direct perpetrators), their families, military superiors, political leaders, foreign supporters, the media, prosecutors, judges, and others. All these actors’ decisions are shaped by social norms and pressures, strategic calculations, material incentives, and intra-organizational dynamics, as well as individual psychology.38

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).

1. 1.

   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. ↩

2. 2.

   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. ↩

3. 3.

   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. ↩

4. 4.

   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. ↩

5. 5.

   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. ↩

6. 6.

   Sainati, supra note 3, at 203

   (citing Rome Statute, Art. 17). ↩

7. 7.

   Rome Statute, supra note 5, at Art. 18. ↩

8. 8.

   Hakimi, supra note 4, at 322. ↩

9. 9.

   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.”). ↩

10. 10.

    Hakimi, supra note 4, at 322. ↩

11. 11.

    Sainati, supra note 3, at 201. ↩

12. 12.

    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. ↩

13. 13.

    Sainati, supra note 3, at 206. ↩

14. 14.

    Id. ↩

15. 15.

    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. ↩

16. 16.

    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. ↩

17. 17.

    Hansen, supra note 15, at 4. ↩

18. 18.

    Id. at 5–6. ↩

19. 19.

    Id. at 5. ↩

20. 20.

    Bjork & Goebertus, supra note 2, at 215–20. ↩

21. 21.

    Id. at 217. ↩

22. 22.

    Id. at 216–17. ↩

23. 23.

    Bjork & Goebertus, supra note 2, at 218. ↩

24. 24.

    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. ↩

25. 25.

    Id. at 32. ↩

26. 26.

    Bjork & Goebertus, supra note 2, at 214. ↩

27. 27.

    Id. ↩

28. 28.

    Id. at 210–11. ↩

29. 29.

    Id. at 211. ↩

30. 30.

    Sainati, supra note 3, at 220. ↩

31. 31.

    Cavallaro, supra note 24, at 52. ↩

32. 32.

    Id. at 52–53. ↩

33. 33.

    Id. at 53. ↩

34. 34.

    Id. at 55. ↩

35. 35.

    Id. at 54–55. ↩

36. 36.

    Id. at 56. ↩

37. 37.

    Sainati, supra note 3, at 214–15. ↩

38. 38.

    Cavallaro, supra note 24, at 5. ↩

39. 39.

    Sainati, supra note 3, at 216. ↩

40. 40.

    Id. at 221. ↩

41. 41.

    Id. at 221–22. ↩