Complementarity: Too Stringent a Test?

While critics claim that the ICC’s focus on crimes committed in Africa is inappropriate, its defenders cite the Prosecutor’s preliminary examinations of non-African crimes as evidence to the contrary. Because the Office of the Prosecutor is evaluating situations outside Africa with an even hand, defenders argue, the Court exhibits no bias against Africa. Several preliminary examinations of non-African situations are currently ongoing.1 The Prosecutor is evaluating whether the Court has subject matter jurisdiction over alleged crimes in Afghanistan, Honduras, and the Republic of Korea, and whether situations in Colombia and Georgia are admissible in light of the Court’s commitments to complementarity and to prosecuting only the gravest crimes.2 If any of these non-African situations come under a full investigation, defenders of the Court will have a powerful reply to the charge of bias against Africa.

Even short of a full investigation, though, the situation in Columbia provides the Court with a meaningful opportunity to clarify and reinforce its commitment to complementarity.3 Some commentators have argued that the Prosecutor ought to proceed with a full investigation in Columbia.4 However, salient distinctions can be drawn between Columbia’s justice system and those that were present in the African nations where preliminary examinations grew into full-scale investigations; such distinctions might reveal that complementarity bars a full investigation. In particular, while at least some of the Columbian crimes have been prosecuted in Columbia, the same could not have been said about the relevant African nations. And indeed, an Interim Report on Columbia published by the ICC in November of 20125 seems to suggest that the Prosecutor may decline to proceed to a full investigation there on exactly these grounds.6

The Interim Report concludes that while war crimes and crimes against humanity may well have been committed by both State and non-State actors, domestic judicial proceedings have addressed many of them.7 It concludes, for example, that “a large number of FARC and ELN [guerilla group] members, including senior leaders, have been the subject of national proceedings under the ordinary criminal justice system in Colombia,”8 and that “43 out of 46 senior paramilitary leaders still alive today have been investigated, prosecuted or convicted in respect of conducts which constitute crimes within the subject-matter jurisdiction of the ICC.”9

However, the Report also concludes that “while numerous members of the armed forces have been investigated and … sentences issued, the proceedings have not focused on the responsibility of those at senior levels for the occurrence of such crimes.”10 Furthermore, and perhaps more importantly, the methodology utilized in the ICC Report is exclusively quantitative, merely counting the number of prosecutions conducted and convictions secured; there is no qualitative analysis of, for example, whether such proceedings are conducted impartially.11

Given that the Court is committed to principles of due process in conducting its own proceedings12, it makes make little sense for the Prosecutor to disregard whether such principles have been respected in other proceedings when evaluating them for purposes of complementarity.13 In other words, where there is reason to believe that domestic proceedings violate internationally recognized due process requirements, their mere existence should not necessarily trigger the Court’s complementarity principle and preclude a full ICC investigation. And charges of exactly this kind have been leveled with regard to the Columbian prosecutions. Commentators have argued, for example, that many Columbian prosecutions are subject to unjustifiably long delays resulting from key perpetrators having been extradited14, and that threats and violence against human rights defenders and members of the judicial system undermine its independence and impartiality.15 Yet evaluation of such matters is conspicuously absent from the Interim Report.

Whether or not the proceedings in Columbia truly violate basic due process requirements, an acknowledgement that the question is relevant to the Prosecutor’s preliminary examinations would be welcome. To treat the due process qualities of domestic systems of law as irrelevant would seem to reveal that the Court’s commitment to complementarity precludes prosecutions for crimes occurring in all but the most ill-functioning of legal systems. States would be enabled to shield their citizens from the ICC simply by enacting sham proceedings against them. By contrast, by indicating that the quality of judicial proceedings is relevant to the question of whether they trigger complementarity, the Court can create incentives for States to create robust legal systems which respect due process. Thus, the Prosecutor should inquire carefully into the quality of the relevant Columbian prosecutions. Should she conclude that they are sufficiently respectful of due process as to trigger the complementarity principle and preclude an investigation, she will provide a principled reply to the charge of bias against Africa.