For these reasons, positive complementarity should remain a central tenet in the Rome Statute, and should be employed where appropriate to achieve peaceful outcomes. However, there are some obvious limits to the effectiveness of such an approach. Often, states may be unable to prosecute in a satisfactory way. If a state cannot prosecute or prosecutes insincerely, war criminals may continue to act with impunity. In some cases, they may even resume positions of power. Instances of such impunity would have the additional negative effect of undermining the ICC’s authority, as it may be seen to have implicitly condoned impunity by failing to prosecute. This also will invariably be a large obstacle in advancing victim justice and thus inhibit peace-building in that nation. Hence, there are undoubtedly situations in which the ICC, and not the state, must prosecute criminals.

At present, there is no bright line rule governing when the ICC will operate through positive complementarity and when it will prosecute. The conditions which limit the admissibility of cases under Article 17 are vague, and fail to provide concrete guidance for when the Court will assert jurisdiction. Most importantly, the Court must clarify when a state is “unwilling or unable” to prosecute on its own.9 A clear rule will project predictability, will be more decisive than the current indeterminate rule, and will pose a more definite threat to criminals. This will in turn strengthen the ICC’s authority and deterrence effect. A rule will also provide the international community with stable and foreseeable legal norms. States will have an expectation of when positive complementarily will no longer be an option. This may incentivize them to prosecute more effectively on their own, and will also undermine their objections to ICC jurisdiction when it is asserted. Finally, deterrable war criminals will also be able to better grasp the ICC’s stance, and will understand that negotiations with states are only available up to a certain point. This may encourage negotiations when they are viable. At the same time, the existence of a point when prosecution is certain will destroy the possibility for criminals of unending impunity. For these reasons, it is important that the ICC adopt a definitive stance to determine when a state is “unwilling or unable” to prosecute.

Rules that the ICC could Adopt to Clarify its Grounds for Jurisdiction

A central part of the Rome Statute pertaining to when the ICC and not the state will prosecute lies in Article 17. Although there are other instances under which the ICC may assert jurisdiction, Article 17 provides the general rule.10 Therefore, any discussion of a clear rule separating ICC prosecution from state prosecution, or positive complementarity, centers on an analysis of Article 17. Subsections 1(a) and (b) reference a state’s “unwillingness” or “inability” to “genuinely” prosecute crimes. Although Sections (2) and (3) provide some instances of what constitute these terms, such as “an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice,”11 these fall short of providing the necessary clarity. In order to undertake a position which will give guidance, Article 17 should be broken down and further elucidated. Most importantly, a clear rule indicating when the ICC will exercise jurisdiction turns on when a state is “unwilling or unable” to genuinely prosecute a crime.

Article 17, section (2) clarifies when a state is “unwilling” to prosecute satisfactorily. Unwillingness is found where a state prosecutes with the aim of “shielding” the perpetrator from responsibility,12 where there is an “unjustified delay” in prosecution which is “inconsistent with an intent to bring the person concerned to justice,”13 or where the proceedings are not being conducted impartially and again are “inconsistent with an intent to bring the person concerned to justice.”14 Each of these conditions provides a good start to creating a bright line rule, but needs more specific elaboration of when the ICC will assert jurisdiction. For instance, “unjustified delay” may indicate weeks, months, or years.

There are several stances that could be incorporated as official interpretations of the ICC regarding unwillingness. First, a state may be “unwilling” per se if those charged with crimes are in power, or in control of the justice system which would be responsible for prosecuting. The definition of “shielding” a criminal is more difficult to pin down. An effective way in which a state may effectively be seen as “shielding” the criminal is when it provides any situation in which the perpetrator could possibly return to power. This would allow states to give criminals either criminal sanctions (even if reduced in exchange for cooperation, following the style of U.S. courts), asylum, or various alternate justice mechanisms (provided they do not supply political immunity). Whatever the outcome, under any such instance the criminal must be permanently prohibited from ever returning to power. Thus the interpretation could read something like: “A state will be deemed to shield perpetrators if their sentencing would allow them, in any way, to reassume a position of political power.” “Impartial” proceedings could likewise incorporate this bar on political immunity. They could also further be defined as having 1) any involvement of the perpetrator’s political party in his criminal proceedings; or 2) any evidence of bribery over a certain amount, or other similar payoffs.

The definition of “unable” is as vague as that of “unwilling,” though the Rome Statute elaborates even less, stating “a total or substantial collapse or unavailability” of a state’s national judicial system.15 A total collapse of a judicial system, whether by falling into the hands of the party charged or by complete destruction of the judiciary, is a fairly clear allowance for ICC jurisdiction. A bright line rule for “total collapse” should thus be relatively straightforward. The definition of “substantial collapse or unavailability” however, must be elaborated upon. One instance of this could be when a state judicial system is not capable of prosecuting on its own. This could be because of a complete dearth of economic resources (i.e. the country’s economy cannot support a judicial system), evidence of regular corruption or bribery, or a major lack of people who are adequately educated. Any one of these factors may be said to constitute a “substantial collapse or unavailability” of a state’s judicial system. By contrast, if a state is able to prosecute, but only is able to prosecute poorly (i.e., it has ample people to serve the judiciary, but who have only poor training), it should not be deemed either “substantially collapsed” or “unavailable.” Positive complementarity should be favored, since the ICC and other international organizations may help oversee the prosecutions.

A final way in which a judicial system may be defined to be “substantially” collapsed is if there is a record of failed negotiations, or of past impunity of the war criminal. For example, if positive complementary has once failed to remove the perpetrator from power, the state may properly be said to be unable to prosecute. In addition, if formal negotiations have been held repeatedly with the war criminal (for example, more than two times), but have not come to fruition and/or have led to more violence, the nation may be held to be similarly unable. Under clear guidelines such as these, the ICC may maintain its respect for national prosecution and help to develop a state’s judiciary. At the same time, when the state will not prosecute adequately to ensure justice and remove criminals from power, the ICC will have strong grounds for jurisdiction over war criminals.

These interpretive suggestions are merely examples, and are not exhaustive. An ideal rule may require clarification of other terms. However, redefining these key terms in some way will substantially improve the rule of ICC admissibility. This in turn will give the international community much needed guidance of the Court’s stance, and endow it with legitimacy in conducting investigations and in establishing a more authoritative image.

Methods for Implementing a Clearer Rule

Once it has formulated its position on jurisdiction, the ICC must make that position known. The ICC’s grounds for establishing jurisdiction are contained in the Rome Statute. It is not necessary to formally amend the Statute, since the vagueness and breadth of the current rule, namely Article 17, provide ample room for interpretation. Nonetheless, it is important that the ICC formulate and make known an interpretive rule as soon as possible. Since widely known, clear guidelines for jurisdiction are critical in legitimizing the ICC, the sooner a rule can be disseminated, the better. One way in which the ICC may formulate such an a rule is through case law, specifically by articulating its position in a judicial opinion. However, given the limited number of cases that the ICC hears, and the fact that not all will include jurisdictional questions, an opinion which may articulate the definitions of unwilling or unable may be long in coming. Furthermore, ICC decisions do not have stare decisis effect—although highly persuasive, they are not binding. Because a solid interpretive stance rising from continued case law could take years, the Court should supplement this method of rule formulation with an official statement summarizing its interpretation of “unwilling or unable.”

An issuance of interpretive stance (“issuance”) may be given under the authority of Article 4 of the Statute, which endows “the Court” with “such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.”16 Since the issuance would be purely an interpretation of the statute, and would not conflict with established international law norms, it should be entirely consistent with the Court’s interpretive mandate under Article 21.17 As discussed, interpretive guidance is crucial, and so may properly be considered as “necessary” to fulfill the Court’s functions under Article 4.

Because Article 4 refers to the legal capacity of “the Court,” and since the judges of the ICC will formulate opinions in future cases, the issuance should be formulated by the Presidency. Under Article 38(3)(a), the Presidency, comprised of the President, and the First and Second Vice-Presidents, is responsible for “[t]he proper administration of the Court.”18 An issuance of how the Court will legitimately interpret the Rome Statute would fall under this category. The Presidency should ideally represent the position of the judges when formulating the interpretation. Although there is no mandate under Article 38(3)(a) to do so, it is in the best interests of the Presidency to issue a stance that will be followed in the future by at least a majority of the judges. In addition, the Presidency should seek the concurrence of the Prosecutor, as an interpretation of Article 17 is a “[matter] of mutual concern.” under Article 38(4).19 This also would be in the best interests of the Court, since the concurrence of the judges and the Prosecutor is highly desirable when preparing an interpretive stance. This is both so that the position can be followed through in practice, and so that the ICC an internal congruence, which will further strengthen its solidarity and authority.

Concerns that issuing such a interpretive stance will exceed the Court’s authority under the Rome Statute should not be validated.20 Since the judges may legitimately interpret the language of the statute in individual cases, they should be free to take an official stance on such language.21 Public knowledge of this will aid states by improving understanding of the legal expectations of the ICC, and will benefit the ICC by strengthening its authority.

Conclusion

Clear definitions such as the ones proposed may entail many of the same criticisms that the ICC currently faces. For example, if the ICC will assert jurisdiction after two failed negotiations between the state and the perpetrator, the perpetrator may still lose incentive to negotiate and may cause more violence. However, a line must be drawn somewhere; at some point the Court must not risk the impunity of war criminals. When an interpretive stance is solidified, the international community will better understand the ICC’s legal position, which will better allow them to comply with it. Without clear guidance of what constitutes “unwilling or unable,” it is extremely difficult for the ICC to adopt a consistent stance; absent such predictability, the ICC will not be able to gain authority. In the end, the ICC must establish itself as a predictable, authority-wielding institution in order to to prevent crime, deter war criminals, and promote justice. This will require a definite message of when the ICC will prosecute.

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

1. 1.

   Article 1 also emphasizes the importance of positive complementarity in establishing the ICC, which “…shall be complementary to national criminal jurisdictions.” 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], art. 13. ↩

2. 2.

   The Rome Statute refers to this jurisdiction as “admissibility”; in Article 5 it discusses “jurisdiction” in terms of the subject matter (i.e. the crime committed). This comment will discuss the ICC’s jurisdiction in terms of this “admissibility,” and not in terms of whether the crime committed constitutes a crime over which the ICC has jurisdiction. See Rome Statute, supra note 1, at art. 5. ↩

3. 3.

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

4. 4.

   See Katherine A. Marshall, Prevention and Complementarity in the International Criminal Court: a Positive Approach, 17 Hum. Rts. Br. 21, 26 (2010). ↩

5. 5.

   For more on this argument, see Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209 (2008); Eric M. Fish, Peace Through Complementarity: Solving the Ex Post Problem in the International Criminal Court Prosecutions, 119 Yale L.J. 1703 (2010). ↩

6. 6.

   See Fish, supra note 5, at 1711. ↩

7. 7.

   For instance, some believe that the Ugandan truth commissions, or mato oput, could be a preferable way to punish Ugandan war criminals. See generally Keller, supra note 5 and see Fish, supra note 5. ↩

8. 8.

   See Keller, supra note 5, 223-237 (2008). ↩

9. 9.

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

10. 10.

    Although they are important to a holistic ICC jurisdictional stance, this comment will not address how the ICC can clarify its positions regarding state referrals or prosecutorial proprio motu investigations. The ICC should clarify its positions on each provision to establish clear jurisdictional guidelines. However, because each is complicated and controversial, and involves different considerations, a separate discussion would be necessary to develop a rule in each of these circumstances. For the provisions see Rome Statute, supra note 1, art.14-15. ↩

11. 11.

    Id. at art. 17 (2)(b). ↩

12. 12.

    Id. at art. 17 (2)(a). ↩

13. 13.

    Id. at art. 17 (2)(b). ↩

14. 14.

    Id. at art. 17 (2)(c). ↩

15. 15.

    Id. at art. 17 (3). ↩

16. 16.

    Rome Statute, supra note 1, at art. 4(1). ↩

17. 17.

    Article 21 discusses applicable law, from statutory definition, to general principles of law. Id. at art. 21. ↩

18. 18.

    Id. at art. 38(3)(a). ↩

19. 19.

    Id. at art. 38(4): “In discharging its responsibility under paragraph 3(a), the Presidency shall coordinate with and seek the concurrence of the Prosecutor on all matters of mutual concern.” The court’s admissibility will invariably affect and involve the Prosecutor. ↩

20. 20.

    Indeed, the Office of the Prosecutor has already published an “Informal Expert Paper” discussing Article 17 interpretation. While this paper provides some good guidance, a more active interpretation of the Court itself would be more widely known and most effective. See Informal expert paper: the principle of complementarity in practice, ICC-01/04-01/07-1008-AnxA, (30 March 2009). ↩

21. 21.

    This is especially true given the slow-moving pace of interpretation via case law in the ICC. ↩