II. Positive Complementarity and Prevention

Positive complementarity may help advance the goals of the ICC for a number of reasons. First, given the ICC’s nearly global mandate and its limited resources, it will often not be possible for it to prosecute a majority of those most responsible for international crimes.10 Hence, there is a strong possibility that the Court will become overburdened with cases and need to off-load its burden to national criminal jurisdictions.11

Second, since Article 1 of the Rome Statute declares that the ICC “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern,” the Court is unable to prosecute lesser offenders; this has been called the “impunity gap.”12 In order to help close this gap, positive complementarity encourages “domestic prosecutions of international crimes, including those that may not meet the gravity threshold for prosecution by the ICC.”13 As a result, while the ICC concentrates on more serious international crimes, national governments can prosecute those responsible for lesser crimes so that a larger portion of international crimes are held accountable.

Third, national courts are more cost-effective and efficient than international criminal tribunals for “evidence collection, protection of witnesses, and transportation of those who are facing charges.”14 This is because international criminal tribunals are often “far away from the crime scene, in both geographic and cultural terms,” and because national courts can utilize local personnel, need less translations, and have more judges who are available.15 Thus, in certain cases, national courts are simply better suited for prosecutions of many international crimes.16 Moreover, by unloading potential cases to domestic prosecution and utilizing the resources of national criminal courts, the ICC can focus on the most serious international crimes where it would be most effective or where national governments are unwilling to prosecute themselves.17

In addition, the duty of domestic prosecution of international crimes is found in existing state obligations under various international treaties, including the Geneva Conventions of 1949 and the Genocide Convention, and the Preamble to the Rome Statute itself.18 Also, positive complementarity is part of the OTP’s strategy.19 In a statement, the OTP stated, “[T]he Office has adopted a positive approach to complementarity, meaning that it encourages national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation.”20

Thus, not only will the continuation of positive complementarity maximize the ICC’s impact on crime prevention, but it will reinforce existing international duties of states to prosecute domestically and help foster the OTP’s explicit desire to cooperate with national criminal jurisdictions.

III. Challenges for Positive Complementarity

There are several problems with the notion that positive complementarity will enhance the efficacy of the ICC. One major problem is that many mass atrocities take place in societies and cultures that are steeped in violence and disorder, making domestic prosecutions impractical. For example, in Rwanda, the government was unable to carry out judicial proceedings against the perpetrators of the 1994 genocide because of the “political turmoil, armed conflict, and the resultant damage and destruction to the infrastructure and governmental institutions.”21 These situations are better suited for ICC intervention because a call for positive complementarity would be unrealistic.

However, even in situations of serious international crimes where states have nascent court systems with a certain level of sophistication, it is often the case that national criminal systems are significantly lacking or too culturally distinct to meet ICC standards of investigation and prosecution.22 For example, in Uganda, the Lord’s Resistance Army has targeted an ethnic group called the Acholi and is “responsible for the forced abduction, conscription, and abuse of tens of thousands of [the Acholi] children.”23 But instead of a criminal trial, there is a traditional ritual called “mato oput,” which involves an admission of guilt followed by sanctions.24 Consequently, “the token nature of the sanction, the lack of procedural rigor, and the emphasis on forgiveness and reconciliation reveal something very different from the kind of criminal justice typically associated with serious violent crimes.”25

Article 17 of the Rome Statute provides some guidance as to what constitutes an acceptable “investigation” or “prosecution.” The Statute declares that domestic proceedings must be in accord with “principles of due process recognized by international law” and “conducted independently and impartially…in a manner which, in the circumstances, is [consistent] with an intent to bring the person concerned to justice.”26 If a state fails to investigate or prosecute in accordance with these standards, the Court can decide that the state is either “unwilling” or “unable” to genuinely carry out the investigation or prosecution.27 Accordingly, even with a lax reading of these brief guidelines, it would be difficult to argue that mato oput falls within the rigors of Article 17.

However, this problem extends to highly developed states as well. For example, for certain ICC crimes, it may be difficult to find a matching crime in a domestic criminal system.28 Moreover, even if there is a matching crime, “many states have criminal provisions that penalize the same conduct that would fall under one of the substantive definitions of crimes proscribed by the ICC, but which do so under different legal characterizations.”29 As a result, if a state has a criminal system that does not closely mirror the offenses listed under the Rome Statute, the OTP is free to simply consider that the state is unable to prosecute the crimes.30 In other words, where a domestic criminal system covers a different range of conduct than the Rome Statute, states run the risk of “relinquishing their competence to investigate and prosecute, because the ICC may declare them to be ‘unable.’”31 Consequently, the principle behind positive complementarity of respecting and encouraging national criminal jurisdictions is severely undermined.32

At the same time, even in highly developed states that attempt to prosecute domestically, many national prosecutors may not be familiar with prosecuting mass atrocities or war crimes cases. One reason for this is that it is difficult to construe and apply the elements of international crimes within the Rome Statute, given the complexity of many of the crimes’ definitions.33 A second reason is the high evidentiary demands of international crimes. The problem is that “the huge number of acts committed in the context of international crime” means that “the number of victims and possible witnesses can run into tens of thousands,” and the sheer “magnitude of the mayhem requires examining an immense volume of forensic evidence, witness testimony, expert witness statements, and relevant documents.”34

A third reason is that evidence for international crimes, unlike in domestic cases, is often controlled differently by each government and significantly influenced by international organizations and non-government organizations (“NGOs”). For instance, while a third party state with significant intelligence-gathering capabilities may be willing to cooperate with the Court, a state whose national allegedly committed the crime may not be so willing.35 Such was the case in Croatia, where “important information relating to crimes committed by Croats in Bosnia was held by the Croatian government,” which “denied that it possessed this information and…refused to disclose it despite repeated requests from the ICTY.”36 In addition, international organizations and NGOs play a large role in informing the ICC about the occurrence of potential crimes within the Court’s jurisdiction, investigating and evaluating states’ compliance with international obligations, and pressuring states that fail to comply with requests from the ICC.37 Thus, in order to perform its investigative and evidence-gathering functions, the ICC is particularly dependent on states, international organizations, and NGOs, each of which controls and influences material evidence differently.38 For these reasons, the unfamiliarity of domestic prosecutors with the wide complexity of prosecuting international crimes poses another substantial challenge to positive complementarity.

IV. Implementing Positive Complementarity

Despite the problems discussed above, there are several ways that positive complementarity can be implemented effectively. First, for national criminal jurisdictions with inadequate resources, facilities, and procedural safeguards, the ICC can assist states in prosecuting crimes themselves by providing access to its legal archives and expertise for information relating to serious international crimes. For example, the ICC Legal Tools Project is dedicated to building an online database with an expansive library of legal documents and research that is available to the general public.39 The purpose of the project is:

to level the playing field in the documentation, investigation, prosecution and adjudication of core international crimes and in the defence of persons accused of them, allowing national judicial institutions to process international crimes involving their nationals or committed on their territory that may otherwise have lacked the means to do so.40

Although the Legal Tools Project would be helpful to many states, it needs to go further than providing information that is publicly available. Since much of the Court’s investigative work is carried out in countries where security for investigators, victims, and witnesses is uncertain, an effective program needs to ensure their safety and protection.41 Moreover, because the OTP relies heavily on confidential information and evidence to investigate and prosecute international crimes, the program must also secure the careful safekeeping and proper transfer of confidential materials.42 In addition, the program must provide an effective way to search through the daunting amount of international criminal law material within the ICC so that states can quickly and efficiently find relevant materials. While such a program would be useful for highly developed states as well, it would be particularly useful for underdeveloped states in helping them build national capacity to investigate, prosecute, and adjudicate serious international crimes.43

Second, the ICC can work together with international bodies such as from the United Nations, NGOs, or even other States Parties to draw international attention to a difficult situation.44 In doing so, the ICC may be able to stigmatize the wrongdoer into negotiating with the Court or national governments and thereby facilitate resolution or peace.45 Also, the ICC can increase international pressure on States Parties to follow through with their obligation to undertake criminal prosecutions themselves.46 To take it a step further, the ICC can collaborate with other states, international organizations, and NGOs to help states with underdeveloped criminal systems conduct national prosecutions by training domestic judges and attorneys, providing technical assistance and support, and even working on domestic judicial reform.47 In doing so, the ICC can contribute to creating stronger institutions and in the long run strengthening the rule of law both domestically and internationally.48

Third, Burke-White argues that if the ICC can build a strong track record of prosecuting and investigating serious international crimes in various states, the credible threat of its own intervention into domestic criminal courts may incentivize national governments to pursue prosecutions themselves.49 This is because the failure of national governments to investigate or prosecute involves numerous costs. If the ICC intervened, not only would states “lose prosecutorial freedoms like the ability to determine specific charges, witnesses to be called, and evidence to be presented,” but also “international prosecutions may impose reputation costs on national governments…by indicating that they have failed to meet their legal obligation to prosecute crimes domestically.”50

One current situation exemplifies the very real threat and influence of ICC intervention. One week after the Prosecutor announced that he would begin an investigation in Sudan, the Sudanese government announced that it would “establish special domestic tribunals to prosecute approximately 160 individuals suspected of international crimes in Darfur.”51 While it is debatable whether the Sudanese court planned to genuinely prosecute those individuals, it is clear that the considerable costs of ICC intervention can effectively pressure national courts to accept the political and financial costs of prosecuting international crimes themselves in order to avoid international intervention.52

Lastly, the most robust and powerful form of positive complementarity would be to modify the Rome Statute so that it formally obligates states to exercise national jurisdiction whenever possible.53 While “the complementarity scheme of the Rome Statute is founded on the primary responsibility of national courts, there are no express duties in this regard, let alone a means of enforcement.”54 Without an express obligation in the Rome Statute for states to prosecute international crimes domestically, increasing international pressure on states through threats or negative publicity, or even helping governments build the capacity to prosecute domestically may not be enough to force states to actually do so. A formal obligation would provide the impetus needed to compel adherence by States Parties.55 However, at the same time, even a formal obligation would not resolve several existing challenges to positive complementarity, including the lack of exactly matching international crimes in domestic criminal systems and the unfamiliarity of prosecutors with the complexity and high evidentiary demands of prosecuting international crimes.56

V. Conclusion

In order to maximize its effectiveness in the prevention of crimes, the ICC should continue to encourage and assist States Parties in undertaking national prosecutions of international crimes. While there are significant obstacles to positive complementarity, there are several ways to overcome them and to implement positive complementarity effectively.

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

1. 1.

   Preamble to the Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]. ↩

2. 2.

   Katherine A. Marshall, Prevention and Complementarity in the International Criminal Court: A Positive Approach, 17 No. 2 Hum. Rts. Brief 21, 22 (2010), available online. ↩

3. 3.

   I will be using “deterrence” and “prevention” interchangeably. ↩

4. 4.

   Rome Statute, supra note 1, at Preamble. ↩

5. 5.

   But see Julian Ku & Jide Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities, 84 Wash. U. L. Rev. 777, 790 (2006) (“[T]here is almost no scholarship attempting to analyze whether, as an empirical matter, [international criminal tribunals] are likely to have, or actually have had, any deterrence effect on perpetrators of humanitarian atrocities.”). ↩

6. 6.

   Lisa J. Laplante, The Domestication of International Criminal Law: A Proposal for Expanding the International Criminal Court’s Sphere of Influence, 43 J. Marshall L. Rev. 635, 640 (2010) (citing ICC-OTP, Fourth Report of the International Criminal Court to the U.N. Security Council Pursuant to UNSCR 1593, 10 ICC-OTP (Dec. 14, 2006)). ↩

7. 7.

   Id. at 641 (citing Michael L. Smidt, The International Criminal Court: An Effective Means of Deterrence?, 167 Mil. L. Rev. 156, 188 (2001)). Available online. Archived. ↩

8. 8.

   Id. ↩

9. 9.

   William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53, 54 (2008). ↩

10. 10.

    Id. at 75. ↩

11. 11.

    Jessica Almqvist, Complementarity and Human Rights: A Litmus Test for the International Criminal Court, 30 Loy. L.A. Int’l & Comp. L. Rev. 335. 349 (2008). ↩

12. 12.

    Id. ↩

13. 13.

    Burke-White, supra note 9, at 74. ↩

14. 14.

    Almqvist, supra note 11, at 349. See Burke-White, supra note 9, at 68. ↩

15. 15.

    Id. See Burke-White, supra note 9, at 68-69. ↩

16. 16.

    Id. ↩

17. 17.

    Burke-White, supra note 9, at 74-75. ↩

18. 18.

    Id. at 57. See Rome Statute, supra note 1, at Preamble (“Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,”). ↩

19. 19.

    Rome Statute, supra note 1, at art. 1 (“[The ICC] shall be complementary to national criminal jurisdictions.”). ↩

20. 20.

    Int’l Crim. Ct., Office of the Prosecutor, Report on Prosecutorial Strategy, at 5 (Sept. 14 2006). ↩

21. 21.

    Jimmy Gurule, United States Opposition to the 1998 Rome Statute Establishing an International Criminal Court: Is the Court’s Jurisdiction Truly Complementary to National Criminal Jurisdictions?, 35 Cornell Int’l L.J. 1, 25 (Feb. 2002). ↩

22. 22.

    See Rome Statute, supra note 1, at art. 17. ↩

23. 23.

    Alexander K.A. Greenwalt, Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court, 50 Va. J. Int’l L. 107, 112 (2009). ↩

24. 24.

    Id. at 125. ↩

25. 25.

    Id. ↩

26. 26.

    See Rome Statute, supra note 1, at art. 17(2). ↩

27. 27.

    Id. at art. 17(1)(a). ↩

28. 28.

    Jann K. Kleffner, The Impact of Complementarity on National Implementation of Substantive International Criminal Law, 1 J. Int’l Crim. Just. 86, 96 (Apr. 2003) (“What, for instance, should be the ordinary crime available for an investigation and prosecution of the grave breach of the Geneva Conventions of compelling a prisoner of war or other protected person to serve in the forces of a hostile power, or of the serious violation of the laws and customs applicable in armed conflicts involved in the declaration that no quarter will be given?”). ↩

29. 29.

    Lieutenant Colonel Michael A. Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court, 167 Mil. L. Rev. 20, 70 (Mar. 2001). Available online. Archived. ↩

30. 30.

    Id. at 71. ↩

31. 31.

    Kleffner, supra note 28, at 101. ↩

32. 32.

    Newton, supra note 29, at 72. ↩

33. 33.

    Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court, 97 Am. J. Int’l L. 510, 542 (July 2003). ↩

34. 34.

    Regina E. Rauxloh, Plea Bargaining: A Necessary Tool for the International Criminal Court Prosecutor, 94 Judicature 178, 183 (Jan.-Feb. 2011). ↩

35. 35.

    Danner, supra note 33, at 528. ↩

36. 36.

    Id. ↩

37. 37.

    Id. at 533. ↩

38. 38.

    Id. at 528. ↩

39. 39.

    International Criminal Court, What are the ICC Legal Tools?, available online (last visited Apr. 17, 2011). ↩

40. 40.

    Morten Bergsmo et al., New Technologies in Criminal Justice for Core International Crimes: The ICC Legal Tools Project, 10 Hum. Rts. L. Rev. 715, 724 (Dec. 2010). ↩

41. 41.

    Rauxloh, supra note 34, at 183. ↩

42. 42.

    Rachel Katzman, The Non-Disclosure of Confidential Exculpatory Evidence and the Lubanga Proceedings: How the ICC Defense System Affects the Accused’s Right to a Fair Trial, 8 Nw. U. J. Int’l Hum. Rts. 77, 81 (2009). ↩

43. 43.

    Bergsmo et al., supra note 40, at 723-724. ↩

44. 44.

    Greenwalt, supra note 23, at 161. ↩

45. 45.

    Id. ↩

46. 46.

    Marshall, supra note 2, at 25. See Rome Statute, supra note 1, at Preamble. ↩

47. 47.

    Elena Baylis, Reassessing the Role of International Criminal Law: Rebuilding National Courts through Transitional Networks, 50 B.C. L. Rev. 1, 23-24 (Jan. 2009). ↩

48. 48.

    Marshall, supra note 2, at 25. ↩

49. 49.

    Burke-White, supra note 9, at 69, 87. ↩

50. 50.

    Id. at 69-70. ↩

51. 51.

    Id. at 71. ↩

52. 52.

    Id. at 70, 72. ↩

53. 53.

    Payam Akhaven, Whither National Courts? The Rome Statute’s Missing Half, 8 J. Int’l Crim. Just. 1245, 1247 (Nov. 2010). Some may argue that this proposal technically falls outside the scope of positive complementarity due to the fact that it is an obligation for states to prosecute domestically rather than an encouragement of states to do so. ↩

54. 54.

    Id. at 1266. ↩

55. 55.

    Id. at 1247-1248 (“While this obligation may be partially extracted from existing conventions and customary law, it requires further law-making to become coherent and complete.” ). ↩

56. 56.

    See supra Part III. ↩