II. Broad View of Complementarity: Positive Complementarity

A. What is Positive Complementarity?

As originally conceived, complementarity5 was intended to be a narrow instrument that highlighted the ICC’s role as a backstop to national jurisdictions.6 The ICC was supposed to be a substitution of an international forum for a domestic one,7 and the principal intention was to protect national sovereignty.8 This initial idea of the ICC being a complementary judicial institution to domestic judicial institutions has progressed into what some call positive complementarity.

Positive complementarity is the idea that the ICC can participate more directly and in conjunction with national governments by encouraging them to prosecute crimes in their own national courts.9 It involves cooperation between the ICC and the national governments, in which the ICC can use some of its leverage and authority to encourage and aid national governments when mass crimes are being committed in those nations. Since its establishment, the policy of the ICC’s Office of the Prosecutor has been to take a broad view of complementarity as evidenced by a statement made in 2003 by the Chief Prosecutor Luis Moreno-Ocampo.10 Additionally, the ICC continues to employ this policy,11 which continues to emphasize the importance of working together with individual states.

B. How can Positive Complementarity help the ICC become a credible threat?

The ICC can engage in positive complementarity with national governments in varying degrees. For example, at the bare minimum, the ICC could encourage national governments to prosecute by informing them of situations that have come to the attention of the ICC and wait to see how the state responds. If the state fails to investigate or take any interest in the matter, the ICC could then conduct its own investigation and decide whether or not to pursue the situation. This option would be relatively close to the originally conceived idea (sometimes referred to as “passive complementarity”12) and would be a fairly weak form of positive complementarity for the ICC to engage in.

Alternatively, The ICC could go a step further by not only encouraging national governments to prosecute, but also by using its resources and capabilities to reinforce domestic prosecutions. For example, the ICC might provide aid in domestic investigations, evidence production, training, and other practical methods that can help strengthen the infrastructure of national courts. Additionally, the ICC could expand its cooperative strategy by working together with international, intergovernmental, and non-profit organizations to provide services and support to national governments in their pursuit of prosecution. This expansion of collaboration between the ICC, states and other international actors could serve as an impetus for states to pursue prosecution because they would now have international support rather than working alone. This assumes that the state is actually willing to pursue prosecution and that what was stopping them before was the lack of support and collaboration that positive complementarity would help provide.

Utilizing this broad view of positive complementarity would help with long-term deterrence in two ways. First, by fortifying national judicial systems, the ICC would be aiding states to further develop their national courts—a benefit that could potentially outlast whatever current situation the state is dealing with. Second, and more importantly for the ICC, it would help to build international recognition of the ICC as a credible threat. If the ICC is proactively and consistently involved in facilitating domestic prosecutions, it would slowly emerge as an actor that people recognize and connect to justice. Through this recognition, the ICC would slowly develop as an international credible threat by representing itself not only as a court that itself prosecutes, but also as a court that is actively involved with national governments in aiding with prosecution domestically. Paramount to the success of this strategy is consistency in the ICC’s policy for positive complementarity over time. Assuming that the threat of punishment can serve as a general deterrent to criminal behavior,13 the ICC’s consistency in proactively supporting domestic prosecutions would help to gradually increase deterrence and crime prevention.

There are some limitations to this idea of deterrence and crime prevention through positive complementarity and supporting domestic prosecutions. First, positive complementarity may also involve the ICC encouraging non-prosecutorial means, especially if this is what the national government of a state is actually seeking. I will speak more about the dilemma of peace versus justice in Part III of this comment. For now, however, I will emphasize that to achieve credibility and long-term deterrence, the ICC’s involvement with national governments should be restricted to encouraging prosecution rather than non-prosecutorial methods. Another limitation to positive complementarity is the ICC’s limited resources. Depending on how many trials the ICC itself is conducting, it might not have the adequate funding to take a proactive stance on complementarity. As the ICC is funded by states, there is also a possibility that funding will decrease if states do not support a broad view of complementarity. This is probably the biggest hurdle for the ICC to overcome given that states might be reluctant to provide enough funding if the ICC is taking such a proactive position. Finally, some scholars argue that the threat of prosecution and punishment does not actually deter future atrocity crimes.14

It is necessary to understand that the long-term benefits of positive complementarity will not be immediately apparent. States must be willing to engage in the idea of investing now for a future long-term gain of crime prevention in order for positive complementarity to truly help with deterrence. By taking a more proactive stance with regard to complementarity, the ICC can better position itself as a credible threat, which can subsequently lead to the long-term prevention of crimes.

III. Peace or Justice?

A. The Debate Surrounding Peace or Justice

When positive complementarity does not work and national governments are unwilling or unable to prosecute an individual, the ICC can conduct an investigation and depending on the individual circumstances, may seek prosecution or decide that the criminal behavior is not extreme enough to fall within its jurisdiction.15 The ICC has jurisdiction over some of the most serious crimes of international concern, including genocide, crimes against humanity, war crimes, and the crime of aggression.16 Accordingly, the ICC will issue arrest warrants and seek to prosecute individuals only in the most serious and extreme situations that are not being addressed by national governments. Thus, when the ICC issues an arrest warrant, the question becomes whether the ICC should be steadfast in its pursuit of prosecution, or whether it should be willing to negotiate with the perpetrators of crimes. Should the ICC seek justice and remain resolute in prosecuting, or should it be willing to partake in non-prosecutorial methods when those with arrest warrants ask for amnesty? This “peace or justice” question is an extremely complicated one laden with controversy and ethical predicaments. Many strong opinions exist as to whether prosecution is in the best interests of the international community when atrocities are being committed and there is a chance to end the immediate crimes. If one of the principal objectives of the ICC is to generally deter and prevent future criminal activity, however, the difficult answer to this dilemma favors continuous and resolute prosecution of the perpetrators by the ICC as opposed to pursuing non-prosecutorial methods.

B. If the Goal is Long-Term General Deterrence of Atrocity Crimes, the ICC Should Resolutely Pursue Prosecution

Part of becoming a credible threat internationally involves proactive involvement in prosecutions carried out domestically—this can be achieved through positive complementarity. Another part of becoming a credible threat involves the ICC resolutely prosecuting individuals it deems to fall within its jurisdiction. The consistent policy of prosecuting individuals responsible for atrocity crimes may, over time, create an expectation in individuals that punishment is a viable consequence of their choice to commit crimes condemned by the international community. It is argued that the threat of punishment usually serves to deter rational actors, and some of the individuals that the ICC would target for prosecution might not be rational.17 For the purposes of this comment, perpetrators are assumed to be rational actors.18

Assuming that deterrence can be achieved through the threat of prosecution, the biggest question becomes whether the ICC’s goal of deterrence means it should resolutely seek prosecution over non-prosecutorial methods when they become available. Given the ICC’s goals and focus on justice and crime prevention, it should resolutely pursue prosecution. Other actors and domestic courts can always use non-prosecutorial methods, but the ICC is a prosecutorial institution and is not the appropriate forum for these methods.19 There are, however, a number of drawbacks to this position. First, as previously mentioned, the ICC has limited resources and can only have a few trials per year. Second, the ICC lacks an enforcement body that would allow it to not only issue arrest warrants, but also be able to pursue individuals and actually get them to The Hague. Third, by resolutely prosecuting, many believe the ICC would be prolonging conflicts that could potentially be resolved through non-prosecutorial means. Although these drawbacks are ever present, it will do more harm for the ICC to defer to non-prosecutorial methods once it has already issued arrest warrants. For the ICC to sometimes prosecute and other times withdraw its arrest warrants will render it an international body that reinforces the norms against atrocity crimes only sometimes. Additionally, it sends mixed signals to possible perpetrators of crimes. This is particularly troublesome in situations where a country self-refers a matter to the ICC,20 then changes its mind and wants to give amnesty.21

Ultimately, it is not an easy question whether the ICC should resolutely prosecute in order to help with long-term deterrence. There are financial, practical and ethical impediments to resolute prosecution that the ICC must overcome to more effectively be seen as a credible threat to potential perpetrators. If the goal is to prevent deaths now and end current conflicts as soon as possible, then the ICC should sacrifice its endeavor to become a credible threat and prevent future crimes by taking a step back from its pursuit of prosecution. If the goal, however, is deterrence and the prevention of future crimes (which means less atrocity crimes in the future, and thus, less deaths in the long-term), then the ICC should resolutely prosecute in situations where it has become involved.

IV. Conclusion

In conclusion, the ICC should engage in two methods to ultimately become a credible threat and deter crimes in the future. First, it should take a broad view of the “complementarity” principle and proactively work with national governments and other international actors to further domestic prosecutions. This will help the ICC become a more credible institution, which over time, will assist in with the ICC’s focus on crime prevention. Second, in the situations where the ICC itself issues arrest warrants, it should remain resolute in its prosecution and not become involved in non-prosecutorial methods. The ICC is a prosecutorial institution and it would undermine its focus and credibility to send mixed signals on its determination to seek justice. Although there are short-term implications to this strategy, in the long-term, the ICC will become a credible institution and can help prevent the atrocity crimes it is intended to deter.

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

1. 1.

   The terms “deterrence” and “prevention” will be used interchangeably. ↩

2. 2.

   See 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]; Overview of the Rome Statute of the International Criminal Court (1998-1999), available online (“[e]ffective deterrence is a primary objective of those working to establish the international criminal court”) (last visited Sept. 29, 2011). ↩

3. 3.

   Id. (“Resolved to guarantee lasting respect for and the enforcement of international justice”). ↩

4. 4.

   Id. art. 13. ↩

5. 5.

   Id. art. 17. ↩

6. 6.

   See William W. Burke-White, Implementing a Policy of Positive Complementarity in the Rome System of Justice, 19 Crim. L. Forum 59, 60 (2008). ↩

7. 7.

   Id. ↩

8. 8.

   See Mahnoush H. Arsanjani & W. Michael Reisman, The Law-in-Action of the International Criminal Court, 99 Am. J. Int’l L. 385 (2005), available online. (The idea of complementarity was originally intended as enabling the ICC to step in when states could not or would not prosecute, rather than for the ICC to take a more positive role with national governments.) ↩

9. 9.

   See 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.

    See Luis Moreno-Ocampo, Prosecutor of the ICC, Statement Made at the Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court (June 16, 2003). “As a consequence of complementarity, the number of cases that reach the Court should not be a measure its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.”) Available online (last visited September 29, 2011). ↩

11. 11.

    See Office of the Prosecutor, Report on Prosecutorial Strategy 2009–2012, (February 1, 2010). Available online (last visited September 29, 2011). (Discussing working with States to promote domestic proceedings, as well as contributing to preliminary examinations, investigations, and prosecutions.) ↩

12. 12.

    See Burke-White, supra note 6, at 56. ↩

13. 13.

    See Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7 (2001). (Discussing credible threats of punishment achieving general deterrence of potential perpetrators and the unconscious inhibitions against crime (especially hatred crimes) that develop in a society that could solidify resistance to those seeking to exploit ethnic hostility.) ↩

14. 14.

    This is a highly contested debate where some scholars argue that prosecution does not actually deter potential perpetrators of mass atrocities, while others argue that prosecution or the threat of prosecution do serve as a deterrent. This comment is written under the assumption that the future threat of prosecution will deter criminal behavior. ↩

15. 15.

    See Rome Statute art. 19. ↩

16. 16.

    Id. art. 1 & 5. ↩

17. 17.

    See Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 272 (2008). ↩

18. 18.

    I do not purport to examine the psychological condition of atrocity criminals in this comment. However, even assuming some of these criminals are irrational actors, it is difficult to imagine a perpetrator completely lacking concern with regard to the international community in today’s world. There are many non-prosecutorial disincentives, such as international economic sanctions, that when combined with the threat of prosecution and punishment, can motivate even irrational actors to act in certain ways. ↩

19. 19.

    Non-prosecutorial methods can be very effective in certain situations and can be pursued by other actors, but the ICC is meant to be a prosecutorial institution. At the point in which the ICC becomes involved, the situation is at a stage that warrants prosecution because other actors have not sought any sort of resolution. For the ICC to be involved only in extreme situations reinforces the idea that prosecution at this level is appropriate and can help build the ICC’s credibility as a prosecutorial institution for the most serious crimes. ↩

20. 20.

    See Keller, supra note 17, (discussing the background of Uganda’s referral to the ICC, which it has subsequently sought to withdraw to pursue some form of amnesty.) ↩

21. 21.

    These situations put the ICC in a difficult position because they have issued arrest warrants and the state is willing to grant amnesty. One actor is talking amnesty while the other refuses to give into extortion by withdrawing its arrest warrants. Joseph Kony, the leader of the rebel group the Lord’s Resistance Army, is still at large today. ↩