I. Complementarity As Deterrence

Deterrence can come from a more forceful application of William Burke-White’s concept of “proactive complementarity”, in which the ICC takes an active role in the judicial development of the member states.1 Burke-White’s idea is an acknowledgement of the oft-expressed complementary nature of the ICC as a court of last resort which springs into action only when a national judiciary is “unwilling or unable” to prosecute war crimes. The discussion of “proactive complementarity” and complementarity, in general, seeks to lay a foundation upon which this comment can discuss the means through which the ICC can increase its legitimacy among member states.

A. Legal Basis and Implementation of Complementarity

Article 17 provides a legal basis for a policy of complementarity. Article 17 envisions the ICC as a court of last resort, acting only where domestic courts are “unwilling or unable” to prosecute war crimes.2 As such, the ICC has a residual responsibility and is forced to assume a greater burden in the absence of domestic enforcement mechanisms. Bolstering domestic enforcement mechanisms means that the ICC will have less need to act to prosecute and will be able to focus its energies upon the most egregious of war crimes.3 Article 17 renders cases inadmissible unless the above exception of “unwilling or unable” obtains in a given scenario. This means that the national courts get the first shot at prosecution, with referral only being possible if those efforts are unable to proceed for any number of reasons, such as a total collapse of a judicial system or political pressure preventing prosecution.4

One might also find additional legal basis in the text of Article 88 of the Rome Statute, which provides: “States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.”5 Although Article 88 vests States Parties with the responsibility for cooperating with the ICC, it can be understood that the ICC has at least some interest in helping States Parties to cooperate.6 If the ICC is depending upon the cooperation of States Parties in conducting its work, then it behooves the ICC to take an active role in ensuring the availability of appropriate judicial procedures within that nation. Where the legal foundation provided under Article 17 may not provide an avenue for evaluating the quality of justice provided by domestic legal systems, Article 88 may be read in concert with it to allow a means for the ICC to evaluate domestic judicial procedures, such that they meet whatever is determined to be “international standards of justice”.

Intervening early with leaders allows the ICC to potentially defuse the situation before things turn violent and before passions are enflamed to a point where rationality no longer holds sway. Once conflict has started and violence has erupted, the struggle appears to the participants as one of life and death.

Complementarity targets the leaders and the political environment that they have the potential to create. Although war crimes might be committed by lower-ranking officers or ground troops, the directives leading to such actions tend to be transmitted from the top. Political leaders can use enmity between groups to further their own ends, couching attacks on outsiders in language that suggests that they are acting in the interest of their political constituents or of the integrity of the state.

The means of deterrence goes beyond a weighing of the benefits of engaging in war crimes against the potential cost of punishment. One of the goals of an aggressive policy of complementarity is to stigmatize certain behaviors before they occur by having the elites internalize some version of international criminal law norms.7 Perhaps it is idealistic to think that political leaders will react to opprobrium from other world leaders or that they will worry about being labeled as a pariah, but as awareness and understanding of the role of the ICC increases, this becomes a bigger stick.8 The ideal and end result of this type of influence is that elites will be less likely to support a regime that seeks to engage in widespread violence.

B. Why Should the ICC Guide Domestic Judicial Development?

One could easily ask the question: why should the ICC undertake the project of judicial reform? Why not USAID or another UN body? In a certain sense, the answer arises neatly from the concept of complementarity itself. The ICC is invested with the goal of deterring war crimes and crimes against humanity.9 The ICC’s role as a court of last resort positions it to exert influence upon all parties to increase their abilities to prosecute violations of international criminal and humanitarian law. As such, it is in the best position to transmit guidance on these issues. The ICC has been constituted to address this specific area of criminal law and should thus take an active role in its development from a set of principles to cluster of concrete guidelines and standards.

Further, through the Registry, the ICC can supply domestic courts with expertise in conducting trials involving crimes under the ICC jurisdiction. The idea of using an international legal body to develop local capacity is not a new one—it has been done with varying levels of success in post-conflict Bosnia-Herzegovina, with local courts working in concert with the International Criminal Tribunal for the Former Yugoslavia.10

In aiming to build such capacity, it is important to ensure that discussions are done in the spirit of mutual exchange—not as top-down lectures from the “international community” to local courts. Rather, solutions should be tailored to meet the needs of local governments and constituents. By allowing members of the local legal system the chance to feel that they are influencing the shape of international criminal norms, the ICC can maximize the legitimacy gains from a program focused upon complementarity.

II. Complementarity and the Legitimacy of the ICC.

The ICC should make a concerted effort to increase its legitimacy in the eyes of its member states. This is work that will take many years of increasing awareness and cooperation with local judges, attorneys and political elites, but this legitimacy will provide the conduit through which the ICC can enforce international criminal law norms. Complementarity provides a means of increasing awareness, cooperation and trust between the ICC and the domestic public.

Certain member states and regional organizations too often have a tendency to see the ICC as a tool of Western control or colonialism.11 Much of the criticism comes from what can be interpreted as an unfair targeting of African leaders by the ICC prosecutor. Specifically, these perceptions have led organizations such as the African Union to refuse to fully cooperate with the efforts of the ICC.12 The difficulties that a lack of legitimacy causes becomes apparent with Niger’s resistance to cooperate with the ICC in apprehending Col. Muammar Gaddafi, influenced in no small degree by the stance of the African Union.13

To overcome this type of resistance, member states must feel that they are invested in the ICC. Complementarity should provide the means for member states to become involved in the construction of international criminal law norms.14 This kind of involvement will help to draw clear lines around what types of behavior is unacceptable among peer nations. The type of involvement envisioned includes, inter alia, the training of judges, prosecutors and defense attorneys.15 Similarly, the ICC can provide expertise and technical assistance to member states who request it, perhaps mitigating the types of situations in which domestic courts are unable to prosecute.

One of the continual struggles faced not only by the ICC, but also by the ICTY and ICTR, is the remoteness of those courts.16 International tribunals may have less impact because of this remoteness or may more easily be characterized as a tool of Western influence rather than dispensaries of justice.17 Complementarity would tend to make the work of the ICC more visible to domestic onlookers. Granted, this is a process which might take decades to unfurl, but increasing local awareness of the court’s activities would not only serve to increase legitimacy and familiarity, but also would buttress other goals of the ICC such as evidence collection, etc. Visibility would also improve the general deterrent effect of the court. Whereas currently, many leaders might fear ICC sanctions about as much as they fear getting struck by lightning, increased visibility would make the notion of prosecution more realistic—in either an international or domestic tribunal.18 Once a state party has had a chance to adopt international criminal law norms, referral to the ICC will have more legitimacy because—at least ideally—the ICC and state party will have applied a consistent standard to the question of what it means for a domestic court to be “unwilling or unable” to prosecute a war crimes defendant.

Collaborating closely with state parties would tend to create a more principled set of guidelines for when the ICC should determine that the state parties are not able to prosecute violators.19 The member state would have a better sense of what is expected of them because they would be able to refer to criteria developed in concert with the ICC.

III. Measuring the Deterrent Effect of Complementarity

A policy of complementarity should increase the number of domestic prosecutions of crimes that fall under the jurisdiction of the ICC. Judicial reforms and international criminal law norms would combine so that domestic courts are more likely to prosecute those who commit war crimes.

The obvious, observable effect would simply be domestic courts would be less “unwilling or unable” to prosecute war crimes. Such a change would manifest itself through an increase in the number of prosecutions in domestic courts, regardless of the result. As noted by William Burke-White, prosecutor Luis Moreno-Ocampo has expressed approval for a metric in which the absence of ICC intervention indicates success.20

Of course, this does force us to prove a counterfactual, which is problematic. There could be a host of other reasons for an increase in domestic prosecutions of war crimes. An increase in prosecutions could be related to political change or other exogenous shocks to the domestic judicial system. As with any complex situation, it would be somewhat difficult to establish a clear line of causality from the actions of the ICC to the increase in prosecutions.

However, a correlation between ICC activity and prosecutions could suggest that the ICC’s efforts are successful. Acknowledging that correlation does not equal causation, it might be possible to claim that the ICC is at least partially responsible for changes in the numbers of prosecutions. As the dataset expands over time and across countries, it might be easier to remove other factors and draw a direct causal link between ICC actions and domestic prosecutions. Where such a line is established, it would become apparent that causality would move in a single direction: from the actions of the ICC to the number of prosecutions in domestic courts.

But an increase in domestic prosecutions does not equal an increase in deterrence. For a strategy of proactive complementarity to be successfully measured, one must demonstrate that the increasing likelihood of prosecution leads to greater deterrence. In general, this would seem to be the consensus and the expectation—given that leaders act rationally and thus have reason to consider the ICC when making cost-benefit analyses of possible behaviors.

Conclusion

The arc of discussion in this comment proceeds from the idea that the International Criminal Court has a role to play in domestic judicial development, in conformity with established principles of complementarity. By acting prior to conflicts, the ICC can influence domestic courts to prosecute and also increase its legitimacy. The goal would be to show that the ICC does not wish to usurp sovereignty and whisk criminal defendants away to The Hague. In fact, the ICC should show that it wants the opposite: for member states to resolve their own conflicts, but be ready to refer matters to the ICC where there is a malfunction.

In pursuing a strategy of complementarity, it is important to remember that the ICC is a new court with less than a decade of experience. It is too early to deliver a verdict as to whether the ICC can deter war crimes and it is important to take the them necessary to “install” what is a rather ambitious international endeavor. Although my comment moves through the issues rather quickly, there is much to be said for an approach that seeks to build a long-term foundation and an environment that can propagate clear norms. This may turn out to be a generational project, and it is one that will proceed in fits and starts. However, if the international community—however conceived—has committed the goal of deterring grave crimes against humanity, then the ICC has great potential as a tool.

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

1. 1.

   See generally, 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 (2008). ↩

2. 2.

   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], Article 17. ↩

3. 3.

   See generally, 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, 637 (2010). ↩

4. 4.

   This does not provide an avenue for the ICC to evaluate the quality of justice, rather just the simple fact of its availability or non-availability. See Mahnoush H. Arsanjani, W. Michael Reisman, The Law-in-Action of the International Criminal Court, 99 Am. J. Int’l L. 385, 387 (2005), available online. ↩

5. 5.

   Rome Statute, Article 88. ↩

6. 6.

   For a more in-depth discussion of the possible uses of Article 88 of the Rome Statute, see Olympia Bekou, A Case for Review of Article 88, ICC Statute: Strengthening a Forgotten Provision, 12 New Crim. L. Rev., 468-83 (2009). ↩

7. 7.

   See also, Maj. Michael L. Smidt, The International Criminal Court: An Effective Means of Deterrence?, 167 Mil. L. Rev. 156, 170 (2001) (discussing the modes the role of political elites in fomenting violence and how they might respond to disapproval from the international community). Available online. Archived. ↩

8. 8.

   Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 12 (2001). ↩

9. 9.

   Rome Statute, supra note 2, Preamble (stating goals of ICC). ↩

10. 10.

    See generally, Mark S. Ellis, The Legacy of the ICTY: National and International Efforts in Capacity Building, in Assessing the Legacy of the ICTY, (Richard Steinberg ed. 2011). ↩

11. 11.

    BBC, Gaddafi Must Not Be Sheltered, Says William Hague, September 7, 2011. Available online. Archived. See generally, Akhavan, supra note 7. ↩

12. 12.

    Id. ↩

13. 13.

    Id. ↩

14. 14.

    Development of judicial and prosecutorial practice should not be a one-way street. The ICC should take care to understand local systems of justice and ensure that if traditional means of retribution or reconciliation are used, they are used consistently. See generally, Lars Waldorf, Mass Justice for Mass Atrocity: Rethinking Local Justice As Transitional Justice, 79 Temp. L. Rev. 1, 19 (2006); Alexander K.A. Greenawalt, Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court, 50 Va. J. Int’l L. 107 (2009). ↩

15. 15.

    Training the defense bar is especially crucial as it improves the quality of justice by increasing the perceived impartiality of the ICC. If parties loyal to a target of a prosecution feel that their compatriot had a fair day in court they would seem less likely to engage in extra-legal means of remedy. ↩

16. 16.

    Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 25 (2001). ↩

17. 17.

    Id. at 22. ↩

18. 18.

    Further, even where violators “win” the conflict they might know that they cannot escape prosecution via their influence on domestic courts. If they “lose”, they know that they will face the wrath of a domestic court, where available. ↩

19. 19.

    The intent here is to create a consistent means of evaluating the quality of judicial processes such that targets of warrants cannot claim to have been too unfairly targeted. A corollary issue is the idea of prosecutorial discretion, which can be bounded to some degree by a stable set of rules for referral to the ICC. Again, the idea in limiting the extent of prosecutorial discretion would be to limit allegations of unfair targeting. However, much of this discussion falls outside the scope of this comment. For more insight, see Alexander K.A. Greenwalt, Justice Without Politics? Prosecutorial Discretion and the International Criminal Court, 39 N.Y.U. J. Int’l L. & Pol. 583 (2007). These principles should also incorporate some notion of local dispute resolutions, see supra note 14. ↩

20. 20.

    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, 55 (2008). ↩