II. Complementarity

The principle of complementarity is the principle that the ICC is a court of last resort, intended to supplement rather than supplant national courts, and only where they are inadequate to prosecute those crimes under the Court’s jurisdiction—genocide, war crimes, and crimes against humanity. Article 17 of the Rome Statute provides the statutory formulation of the principle:

[T]he Court shall determine that a case is inadmissible where:

1. The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
2. The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
3. The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; [or]
4. The case is not of sufficient gravity to justify further action by the Court.3

Conditions (a) and (b) provide the substance of the rule for our purposes—if a State is willing and able to carry out genuine investigations and prosecutions for a given crime and has at least conducted a genuine investigation, then the ICC must hold that the case corresponding to that crime is inadmissible.

Given that the Court is statutorily bound to respect the principle of complementarity, we can look to the principles that underlie this commitment in asking what kind of outreach it might license. The Rome Statute itself doesn’t justify or explain the inclusion of Article 17, but nevertheless, the principles underlying the commitment to complementarity are fairly straightforward to discern. Roughly, the Court’s commitment to complementarity reflects a judgment that if all else is equal, it is better for a criminal to be tried in a domestic court that at the ICC. More specifically, the principle as articulated in Article 17 reflects an (even stronger) judgment that it is better for a criminal to be tried in a domestic court than at the ICC, even if all else is not equal, so long as that domestic court satisfies the basic threshold of being capable and willing of holding genuine prosecutions, even if they are inferior in some respects to those in the Court.

There are various different grounds on which one might base a claim that domestic courts are preferable in this sense. Firstly, the comparative likelihood of success that domestic courts are likely to have, as compared to the ICC, might serve as a basis for this claim: Domestic courts, located where the relevant crimes have taken place, are more likely to have the capacity to collect evidence in the manner required to support a conviction, and to utilize a well-established network of resources in investigating crimes. They are more likely to elicit cooperation and assistance with their endeavors, and thus are more likely to secure an actual conviction for a guilty party.

Indeed, some of the Court’s recent cases seem to illustrate that its difficulties in retrieving evidence after arriving on the scene well after the commission of a crime, and in locales where they inspire little cooperation, have posed significant challenges to its success.4 Thus, where a domestic prosecution is feasible, the Court should encourage the State to be the party to carry it out—by making clear that the Court will take no action so long as the State does, it encourages the State to take whatever actions it sees fit, and thus increases the chances of a conviction by some court or other.

A second basis for the claim that it’s preferable that a domestic court rather than the ICC prosecute criminals whenever feasible is the idea that domestic courts’ authority to do so is somehow better established than the Court’s. This claim is tenuous, at least insofar as the nation in question is a signatory to the Rome Statute. After all, such status entails directly that the Court has the legal authority, delegated to it by that State, to prosecute the relevant crimes. Nevertheless, recent history illustrates that this view is not seen clearly by all parties, and that some are likely to challenge the Court’s standing to prosecute such crimes in a way they would not for a domestic investigator or prosecutor.5

Even if this concern about authority is legally mistaken, the perceived legitimacy of a trial—independent of its actual legitimacy—is worth maximizing. In part, this is because perceived legitimacy likely correlates with a willingness to cooperate with investigators and a willingness to be bound by a court’s dictates. To that extent, this reason reduces to the reasons discussed above. But perceived legitimacy may have some independent worth as well—actual legal authority, one might think, must be founded on at least some degree of perceived legitimacy. In any case, to the extent that the prosecuted criminals and the world at large are more likely to accept the jurisdiction and authority of a domestic court than they are to accept the ICC’s, the Court should encourage States to take care of their own prosecutions—the principle of complementarity provides this encouragement.

A third and final reason one might think that it’s preferable for domestic courts to prosecute the relevant crimes whenever possible is that the ICC’s resources are quite limited. Where there are alternative resources available to adequately prosecute a crime, the Court’s resources are thereby better expended elsewhere, namely in cases where such resources are lacking. Thus, the Court should encourage States to prosecute the relevant crimes in order that it can retain sufficient resources for those crimes that States cannot adequately prosecute.

Complementarity, then, reflects a judgment that it is better—in one or several of these respects—for a domestic court to prosecute a criminal than it is for the ICC to do so, as long as that prosecution is genuine. It seems to follow from this commitment that in an ideal world, the ICC would extinguish itself: In a world of unlimited resources and without any practical challenges, the Court would do well to just create legal systems in every nation that are able to investigate and prosecute the crimes in question, and no case would be admissible at the ICC. Of course, though, our world is not one with unlimited resources and without practical challenges, and the ICC is necessary exactly because not all nations have managed to establish such systems of law. Nevertheless, reflecting on the Court’s commitment to complementarity seems to suggest that the Court would be well-justified in expending at least some of its resources in promoting domestic systems of law.

The question of just how much of its resources the Court should devote to building adequate domestic systems of law is a difficult one, and the answer depends on complicated empirical questions about its likelihood of success in such projects and their costs and benefits, and how these figures compare to the values involved with the Court’s alternative courses of action. But at a minimum, if the Court is able to promote domestic rule of law in nations where crimes over which it would have jurisdiction are reasonably likely to occur, and to do so at little cost, then it ought to at least consider so doing. Because the Court’s resources are so limited, it of course needs to be cognizant of maximizing return on its investments, and those investments will necessarily be limited—in what follows, this Comment illustrates that by collaborating with existing organizations, the Court can promote the sort of domestic legal systems that the principle of complementarity renders desirable, and can do so at limited cost. This is so especially if the Court begins by establishing collaborative projects in those nations that have at least some legal infrastructure already established—it is there, after all, where return on investment will likely be maximized.

III. Building Rule of Law

In this Part, I survey the main activities of the American Bar Association’s Rule of Law Initiative (the Initiative), a key organization engaged in rule-of-law promotion. The Initiative exemplifies the kinds of projects that rule-of-law-building institutions are engaged in, and thus illustrates what it is the Court could consider helping with and how it might go about doing so.

A. Complementarity and Rule of Law: Building What?

Before reaching such illustrations, though: What does it mean to build rule of law, and is that really what the principle of complementarity commits the Court to?6 The notion of rule of law has historical roots that go as far back as the ancient Greeks and Romans.7 But despite this long lineage, the concept remains hotly contested. Philosophers and legal scholars have offered various different answers to the question of what exactly it takes for a nation to have rule of law, and there is not one but many concepts employed in current literature.

The Rt. Hon. Lord Bingham offered instructive remarks on the concept before the English House of Lords in 2006, noting that “well-respected authors have thrown doubt on its meaning and value.”8 For example, John Finnis has described the rule of law as “[t]he name commonly given to the state of affairs in which a legal system is legally in good shape”;9 Judith Shklar remarked that the concept “may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians”;10 and Jeremy Waldron, commenting on Bush v. Gore,11 in which the rule of law was invoked on both sides, remarked that utterance of those magic words meant little more than “Hooray for our side!”.12

The conceptual truth perhaps most central to the concept of rule of law is that a system has rule of law only if all citizens, including the lawmakers, are subject to the law.13 Rule of law, in other words, stands in contrast to rule by lawmakers who stand outside the law because, say, they rule in virtue of their divine right to do so. In addition to this basic principle, various others have been proposed in explaining what more is required for rule of law. Current practice is to categorize these proposals into two camps: Formalist, or thin, conceptions conceive of rule of law as requiring only that the law exhibit certain procedural attributes—for example that the law be general, prospective, accessible, reasonably clear, possible to comply with, and fairly stable. Substantive, or thick, conceptions, by contrast, conceive of the rule of law as requiring not only that the law exhibit these procedural attributes, but further that the substance of the rules that those procedures implement respects certain individual (human) rights.

Lord Bingham presented a list of eight potential necessary and sufficient conditions, for example, for a system that possesses rule of law:14

1. The laws are accessible and intelligible.

2. The laws apply universally, in particular including to the lawmakers.

3. Official discretion in determining the laws is bound by a duty to publically offer reasoned justifications; and the laws themselves, rather than official discretion, are what determine the rights and liabilities of the citizens.

4. Officials exercise their power within limits, in good faith, and for the purposes for which their power was conferred.

5. Courts are available for resolving civil disputes.

6. Courts administer the law according to standards of impartiality and procedural fairness.

7. The law protects fundamental human rights.

8. These standards apply at the level of a sovereign state considered as a whole, not only at the level of authorities and citizens within that state.

While conditions 1 through 4 retain a procedural cast, and therefore alone would constitute a thin conception of rule of law, conditions 5 through 8 guarantee certain substantive rights, and thus the conception as a whole is a thick one.

Settling the debate between legal theorists as to whether a thick or a thin conception of rule of law is the appropriate one is not only beyond the scope of this Comment, but also unnecessary for its purposes. The central point of introducing these theories is to illustrate just how unclear the ICC’s commitment to complementarity ultimately is. When Article 17 announces that the Court will find inadmissible any case where the relevant domestic legal system is “genuinely willing and able to conduct investigations and prosecutions,” what exactly does it thereby require? Can a legal system conduct genuine investigations and prosecutions without respecting certain substantive rights? Is it enough that the system have formal properties such as (1) through (4) above, or is something more required? If something more is required, is it (5) through (8) above that are required or is it something else altogether?

As a preliminary suggestion, then, this Comment claims that it would be useful for the Court to tether the principle of complementarity to these existing notions of rule of law drawn from legal scholarship. Were the Court to establish a framework for what it believes constitutes rule of law, this framework would give it something concrete to evaluate when deciding whether investigation of a particular crime is precluded by its commitment to complementarity, and would give it a more concrete list of things to promote when it turns to positive complementarity. The Court might use Lord Bingham’s list, or the United Nations’, or any number of other conceptions out there, or it might pick and choose elements from those conceptions to create its own.

Also noteworthy is that the World Justice Project has created a Rule of Law Index,15 a systematic attempt to quantify the levels of rule of law exhibited by different nations across the globe. The methodology used in creating this Index of course commits itself to a particular understanding of what rule of law requires—the factors that give a particular nation a higher or lower score on the Index are those that are implicitly taken to constitute (or impede) rule of law.16 If those requirements are not the ones the Court takes to be constitutive of the sort of rule of law that triggers complementarity, then the Index will not be as useful as it might have been. To the extent that the Court’s conception of rule of law differs from the World Justice Project’s, though, it may nevertheless be able to utilize their data in creating an Index of their own, scoring nations on the measures relevant to its conception.

And if the requirements used in creating the Index are those that the Court agrees suffice for rule of law, then the Court would have a useful, objective measure at its fingertips. Not only could the Index serve as a measure of when (negative) complementarity is triggered thereby precluding an ICC prosecution—when, say, the nation in which the crime allegedly occurred has an Index rating above a certain threshold level—but further, the factors measured in the Index could serve as a list of specific things to be promoted when the Court seeks to promote rule of law.

B. Ongoing Existing Efforts

Various organizations—among them national governmental organizations, international organizations and nongovernmental organizations—are currently engaged in projects around the world that are worth calling promotion of the rule of law, whatever that turns out to be. Different projects are aimed at different goals, but as argued by Monika Heupel,17 most use a broad array of different strategies to attempt to effect change. While one might have thought that different organizations would use different strategies depending on their diagnoses of why it is exactly that rule of law is lacking, to the contrary, it seems that international organizations and nongovernmental organizations utilize a number of different means, perhaps reflecting their sense of ignorance as to the causes of rule of law vacuums.

The American Bar Association’s Rule of Law Initiative18 provides a nice example of such an organization. The Initiative has roughly seven hundred employees in the United States and abroad, and engages in two central activities: education and research. As regards the former, the Initiative provides both legal and public education:

1. Legal Education: The Initiative establishes public defender and legal aid programs, trains legal professionals to seek redress for human rights violations, and assists law schools in introducing new courses and practical training.

2. Public Education: The Initiative provides public programming, for example on the impact of corruption on a nation’s legal system.

And as regards the latter, the Initiative consults with host countries and assists in producing useful policy ideas and research:

3. Policy: The Initiative drafts potential legislation in connection with host countries, including codes of judicial ethics and other procedural codes, and assists with developing and administering first-ever bar examinations and with strengthening independent bar associations.
4. Research: The Initiative assesses draft legislation written by host countries, conducts legal research, and develops and implements various assessment tools, for example to evaluate access to legal redress in a given area, or the status of legal education.

The comprehensiveness of the ABA Rule of Law Initiative’s programming is illustrative of the variety of efforts that are currently ongoing. Other organizations that have rule of law promotion programs include the following: The Asian Development Bank,19 The United Kingdom Department for International Development (DFID),20 The United States Agency for International Development (USAID),21 and International Network to Promote the Rule of Law.22 To varying degrees, these institutions too are engaged in education and in research, usually with an emphasis on the latter.

These two central strategies, education and research, are well-suited to the task of promoting rule of law, regardless of how exactly we understand it. The formal/procedural aspects of rule of law are agreed by (almost) all parties to be a minimum requirement for rule of law—and we can see that these organizations are promoting the development of legal systems that abide by such procedures. The central strategy of institutions like the ABA Rule of Law Initiative and the International Network to Promote Rule of Law seems to be essentially exposure: By making domestic countries aware of the required concepts and the results of implementing such a system, they hope to inspire development of a system that respects the procedural principles in question. To the extent that a lack of understanding explains a given nation’s failure to implement rule of law to date, this strategy should be somewhat successful. Institutions like DFID and USAID, by contrast, seem to employ not only exposure as a strategy, but also conditionality: By conditioning certain desirable goods or outcomes over which these institutions have control on that nations development of rule of law, they incentivize countries in establishing those procedures that (partially) constitute it.

These efforts are costly to establish, but cheap to contribute to. Thus, assuming that these programs satisfy a certain threshold of effectiveness, the ICC—with its limited resources—would be well advised to contribute to rather than compete with these institutions in promoting rule of law. And the Court is well-suited to make valuable contributions to both education and research programming.

IV. How the Court Might Add to These Programs

The Court’s current rule of law building project consists of their Legal Tools site,23 a collection of resources on international law, available to whomever has access to the internet. The site includes the ICC founding instruments, Rules of Procedure and Evidence, and decisions; legal texts, background information, indictments and judgments of other international legal panels and tribunals; and decisions issued by domestic courts and tribunals concerning genocide, crimes against humanity, war crimes and aggression.

These materials go some way toward satisfying some of the Court’s reasonable outreach goals. For example, they provide access to victims—at least those victims who have access to the internet, perhaps an unfortunately small minority—to information about the proceedings at the ICC. Such information constitutes an expression of condemnation in certain instances (for example, in cases of conviction) and may allow for the (re)establishment of a dignified relationship between perpetrators and victims to at least some extent. But these resources do very little to promote rule of law—they neither expose nations to the concepts and facts necessary to encourage them to develop those legal procedures that constitute rule of law, nor do they incentivize their so doing.

A. Developing Online Presence

An initial step the Court could take in promoting rule of law, then, is to build up and extend the Legal Tools they make available through their website. Firstly, the Court could serve as a useful clearing house and repository for the legal research and writing conducted by the bodies discussed above. Such work could be conducted from an office in the Hague, by employees already paid for by the Court’s existing budget. By collecting key research and papers, the Court would encourage domestic countries to follow the prescriptions and policies contained therein, and would do so at little cost to itself. Thus, the Court could choose and promote those papers that they think will have greatest chance of creating rule of law.

Further, the Court has a unique role to play in that it has the capacity to make available direct evidence of certain crimes. Private parties have been known to present the Court with evidence of crimes: Often this is exactly what triggers the Court’s preliminary investigations. And when the Court does engage in preliminary investigation, it often churns up still more evidence, whether or not it goes on to prosecute anyone. And when the Court does choose to prosecute some individuals, it chooses as a matter of policy only those who are most responsible, despite often having evidence of the culpability of others.

Unlike many of the organizations discussed above, the Court has the capacity to share such evidence with those domestic bodies that are able to prosecute the criminals in question. Admittedly, this is useful to such nations only if they are already able to conduct prosecutions at level that satisfies some minimum threshold of competence. But by providing much needed evidence in such cases, the Court could bolster successful domestic systems of law able to convict criminals.

There will, of course, be situations in which provision of evidence to the world at large would be inappropriate. As such, the Court would be well-advised to take a page from the International Criminal Tribunal for the former Yugoslavia (ICTY): The ICTY page does exactly what’s proposed here, namely making crucial evidence available to prosecutors other than its own. But their webpage implements a two-tiered structure. Whereas certain information is available to the public at large, other information—including sensitive evidence—is available only to users who have applied for and been granted special access. By creating a by-application-only portion of its site, the ICC would create a point of contact between itself and domestic nations, and in order to incentivize legal systems’ development in particular directions, the Court could grant this second layer of access only to those nations whose systems meet certain rule-of-law requirements. The Court could thus encourage domestic legal systems to develop in certain directions rather than others.

B. Training on the Crimes Under the Court’s Jurisdiction

A second step the Court could take in promoting rule of law—perhaps in conjunction with the first step just discussed—is to provide training or training materials on how to prosecute the crimes that fall under the Court’s jurisdiction, namely genocide, crimes against humanity, and war crimes. Often, the domestic crimes that correspond to the crimes underlying these charges simply fail to capture their gravity, and at a minimum, have different legal elements that need to be established. Given that domestic prosecutors will necessarily have little experience prosecuting these crimes, a unique contribution the Court could make would be helping to familiarize such prosecutors with the distinctive challenges of such prosecutions.

There are more and less expensive ways the Court could take this project on, ranging from implementing educational programming in domestic law schools and continuing education programs (where they exist) to simply providing documents that explain what elements must be proven to convict an accused party for the crimes under the Court’s jurisdiction. The latter option and those like it, are a low-cost means by which the Court could promote rule of law. Again, these options assume that the domestic nation in question already has some level of rule of law in place—without it, training prosecutors in any particular crimes is likely to be useless. But for those nations with some legal structure already in place, the Court could condition receipt of such training on further developments toward rule of law. To the extent that domestic prosecutors would benefit from and thus desire such training, this would be an effective means for the Court to use is promoting—or enhancing—rule of law.

V. Conclusion

This Comment has argued that the ICC’s commitment to the principle of complementarity—the principle that it serves as a court of last resort only—licenses it in providing outreach designed to promote domestic rule of law. Complementarity embodies a judgment that domestic prosecutions are in various senses preferable to those the Court can conduct. To the extent, then, that the Court can create the kinds of domestic systems of law that are able to prosecute the crimes under its jurisdiction, and that it can do so at little cost, it ought to at least consider so doing.

Existing organizations are having at least some success in promoting at least some of the elements of rule of law. By providing education and research at the domestic level, these organizations undercut the ignorance that may explain why such nations continue to lack rule-of-law-respecting legal systems. And by conditioning receipt of certain benefits on development of such a system, these organizations offer carrots to nations who might not otherwise be inclined to establish rule of law.

The Court can at little cost to itself supplement these efforts in at least two ways: it can develop its online presence to serve as a clearinghouse and repository for useful legal research, and to make available evidentiary resources lack of which would otherwise hamper domestic prosecutions. And it can provide training, whether in written, verbal, or in-person forms, on how exactly the crimes of genocide, crimes against humanity, and war crimes are distinctive, and thus what’s necessary in prosecuting them.

The best place for the Court to devote such resources is likely in countries with some legal infrastructure already developed—like, for example, Columbia. Such countries are the ones that are likely to be responsive to the efforts described herein, and further, such efforts may be enough to push such nations across the threshold separating those nations with rule of law so inadequate that ICC prosecutions remain the only viable option for a genuine prosecution from those nations with rule of law sufficiently developed to stand on their own.

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

1. 1.

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

2. 2.

   See Legal Tools, Int’l Crim. Ct., available online (last visited Apr. 6, 2014). ↩

3. 3.

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

4. 4.

   See Statement, Fatou Bensouda, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, following an application seeking an adjournment of the provisional trial date, Int'l Crim. Ct. (Dec. 19, 2013) available online. ↩

5. 5.

   See, e.g., Walter Menya, AU Summit Considers Draft Resolution on Withdrawal From ICC, All Africa, May 24, 2013, available online. ↩

6. 6.

   The following remarks were inspired by Gerald Postema’s 2010 Seminar on Rule of Law at the University of North Carolina School of Law. Any lack of cogency or inaccuracies in these remarks are owed to this Comment’s author alone. ↩

7. 7.

   See, e.g., Euripides, The Suppliants, Il. 429-36 (circa 420 BCE) (“When the laws are written down, then he who is weak and he who is rich have equal justice: the weaker ones may speak as ill of the fortunate as they hear of themselves, and a lesser man can overcome a great one, if he has justice on his side”); Plato, Laws (4th century BCE) (“The Gods smile on a city where the law is despot over the rulers and the rulers are slaves of the law”). ↩

8. 8.

   Lord Bingham, Sixth Sir David Williams Lecture: The Rule of Law (Nov. 16, 2006), available online. ↩

9. 9.

   John Finnis, Natural Law and Natural Rights 270 (OUP 1980). ↩

10. 10.

    Judith Shklar, Political Theory and The Rule of Law, in The Rule of Law: Ideal or Ideology 1 (Allan C. Hutchinson & Patrick J. Monahan eds., Carswell, 1987), available online. ↩

11. 11.

    Bush v. Gore, 531 US 98 (2000), available online. ↩

12. 12.

    Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)?, in The Rule of Law and the Separation of Powers 119 (Bellamy ed., 2005), available online. ↩

13. 13.

    Samuel Rutherford was one of the earliest modern writers on the topic and titled his book Lex, Rex (“The law is king”) in reversal of the then-traditional phrase “Rex, Lex” (“The king is the law”). Samuel Rutherford, Lex, Rex (1644), available online. ↩

14. 14.

    Bingham, supra note 8. ↩

15. 15.

    WJP Rule of Law Index 2014, World Justice Project available online (last visited Apr. 6, 2014). ↩

16. 16.

    See Methodology of Rule of Law Index, World Justice Project, available online (last visited Apr. 6, 2014). ↩

17. 17.

    Monika Heupel, Rule of Law Promotion Through International Organizations and NGOs, in Rule of Law Dynamics in an Era of International and Transnational Governance 133 (Zurn, Nollkaemper, & Peerenboom eds., 2012). ↩

18. 18.

    See ABA Rule of Law Initiative, ABA, available online (last visited Apr. 6, 2014). ↩

19. 19.

    See, e.g., Takehiko Nakao, President, Asian Development Bank, Economic Development in Asia and Rule of Law (Jun. 10, 2013), available online. ↩

20. 20.

    Department for International Development, What We Do, Gov.UK, available online (last visited Apr. 6, 2014). ↩

21. 21.

    What We Do, USAID, available online (last visited Apr. 6, 2014). ↩

22. 22.

    See International Network to Promote the Rule of Law, Best Practices for Building Investigative Capacity in Developing or Post-Conflict Countries, INPROL (Jul. 2012) available online. ↩

23. 23.

    See Legal Tools, supra note 2. ↩