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Abstracts Papers
Theme: Origin and genesis of the principle of complementarity
The law and policy of complementarity in relation to ‘criminal proceedings’ carried out by non-state organized armed groups
Jann Kleffner, Assistant Professor of International Law, University of Amsterdam
Certain areas of international law appear to imply that it is not the exclusive province of States and international and internationalized criminal courts and tribunals to conduct criminal proceedings. In particular, the law of non-international armed conflict envisages the possibility that parties to an armed conflict, including non-state organized armed groups, conduct ‘penal prosecutions’. Further, international criminal law imposes an obligation upon (commanders of) parties to an armed conflict to repress international core crimes or to submit the matter to the ‘competent authorities for investigation and prosecution’ in accordance with the doctrine of command responsibility that applies in international and non-international armed conflicts alike. That non-state organized armed groups do, in fact, at least occasionally, conduct ‘criminal proceedings’, is also borne out by the facts on the ground. In a number of non-international armed conflicts, such groups have operated criminal justice mechanisms and carried out ‘investigations’ and ‘prosecutions’ and ‘convicted’ individuals for crimes, including international crimes. The questions that such ‘criminal proceedings’ raise for the complementary nature of the ICC are twofold. First, does the legal framework of complementarity in the Rome Statute accommodate proceedings carried out by non-state organized armed groups in as much as they could potentially constitute a bar to the admissibility of cases before the ICC, provided that they satisfy the requirements of ‘willingness’ and ‘ability’ that one can derive from a converse reading of Article 17? Second, would it be a wise policy choice for the Prosecutor to dismiss all ‘criminal proceedings’ by non-state organized armed groups when exercising the discretion granted by Article 53 of the Statute? While it will be argued that the answer to the first question clearly is in the negative, the second question needs careful consideration that may in certain circumstances lead to an abstention from initiating an investigation provided a number of conditions are met.
Policy Through Complementarity: The Atrocity Trial as Justice
Mark A. Drumbl, Professor of Law, Washington and Lee University
This presentation theorizes the broader effects of complementarity in international relations and transitional justice. Complementarity is not neutral. It is normative. Much like its predecessor, primacy, the complementarity doctrine privileges the liberal criminal trial and its concomitant, sequestered incarceration, over other mechanisms of justice and truth-definition. Complementarity suborns these alternate mechanisms of justice, ranging from traditional methods to state responsibility to qualified amnesties. Accordingly, complementarity may encourage heterogeneity in terms of the number of institutions adjudicating international crimes, but it encourages homogeneity in terms of the process they follow and the punishment they mete out. Complementarity embeds the iconic status of the courtroom and the jailhouse as the best practice to promote justice in the aftermath of grave mass violence. This conceptualization of justice, rooted as it is in select individual guilt, serves important accountability goals. However, it also protects state, organizational, corporate, and bystander interests. Moreover, it may square poorly with the collective nature of atrocity and may not resonate with the expectations of local populations.
To date, much of the discussion about complementarity that has been undertaken by legal professionals focuses on technique at the micro level – namely, the operation of complementarity in individual cases. These are very important discussions. However, looking only at the micro level pulls our gaze away from assessing complementarity’s macro-level effects.
This presentation examines the macro architectural effects of complementarity upon the content, imagination, narrative, and meaning of post-conflict justice. In this regard, the admissibility schematic of the Rome Statute can be constructed as much more than protecting the accused, protecting the state(s) otherwise with jurisdiction, or limiting the ICC’s power. The admissibility schematic, by propounding one type of justice over others, also protects the craft of the international criminal lawyer. In this regard, the author argues that complementarity serves ideological, institutional, epistemic, and bureaucratic agendas. It massages procedure in national jurisdictions, but also, much more broadly, the political economy of what justice is and the imagination of what justice means.
In response, the author suggests that power relationships in international criminal law be revisited, both vertically and horizontally. He urges a gentle and flexible interpretive understanding of complementarity. He articulates an admissibility standard couched as qualified deference to the national or local. To badly paraphrase Rawls, atrocity trials are a theory of justice, not the theory of justice; to the extent complementarity blurs the distinction between these two notions, it may underserve transitional projects generally.
The Genesis of Complementarity
Mohamed El Zeidy, Legal Adviser, International Criminal Court
When we discuss the genesis of “complementarity” in international criminal law, many scholars immediately think of the 1994 International Law Commission’s (ILC) Draft Statute for an international criminal court and the related work of the ILC’s working groups during the early 1990s, as though the roots of the concept only go back to the 1990s. This is a misconception that ought to be corrected. The concept of “complementarity” is neither the sole product of the 1994 ILC’s work nor the sole outcome of any recent work on the subject during the 21st century. To the contrary, “complementarity” is an idea which developed over a long period of time until reaching its final resting place within the Rome Statute. The concept of “complementarity” has also been re-shaped and has emerged in different guises. Each model introduced at a particular time was grounded on different legal –and often overlapping – philosophical theories. This paper addresses these claims and will particularly demonstrate that there are at least four major models of complementarity, each of which embodies a set of comparable models including the one currently found in the Rome Statute.
Reflections on Complementarity at the Rome Conference and Beyond
Mauto Politi, Judge International Criminal Court
It is largely accepted that the “complementarity” of the ICC vis-à-vis national jurisdictions constitutes one of the key features (if not the key feature) of the Court. Since the beginning of the travaux préparatoires, delegations agreed that, unlike in the system of ad hoc Tribunals (based on the “primacy” of their jurisdiction over domestic courts) the ICC should intervene only when the national jurisdictions are “unavailable” or “ineffective” (to use the terminology of the original International Law Commission draft statute). Naturally, the real problem was to shape concretely the way in which the principle of complementarity would operate, and to find the right balance between respect for State sovereignty and effectiveness of the Court’s action. The final compromise, mainly reflected in Articles 17 to 20 of the Rome Statute, achieved some important results in seeking this balance. At the same time, it raises a number of substantive and procedural issues that the Court will be called to address through its jurisprudence (and, to some extent, has already been facing).
International Idealism Meets Domestic Procedural Realism: Complementarity, Gate-Keeping and Case Selection
William Burke-White, University of Pennsylvania
Though originally developed as a means to protect state sovereignty and limit the powers of an international tribunal, complementarity serves critical gate-keeping and case selection functions in the international criminal justice system. Domestic legal systems have well developed means of addressing these issues, determining which cases to prosecute, and allocating such cases among courts and tribunals within the system. This presentation revisits the case selection and gate-keeping functions of complementarity through a comparative consideration of mechanisms used to solve similar problems by domestic judiciaries, particularly the US federal judicial system. In so doing, the presentation raises theoretical questions about the purposes and functions of international criminal justice as well as the technical implications of those theoretical choices. The presentation suggests ways that complemenarity can be used to allow international criminal tribunals to do better triage, by screening out some cases and striking cooperation agreements or other plea bargains in many more. The presentation suggests how a new theoretical take on complementarity can improve gate-keeping and case selection, plea bargaining and case loads.
The views expressed in this paper are those of the author, and do no not necessarily reflect those of the U.S. Department of State or the U.S. Government.
Theme: Interpretation and Application of the Rome Statute
Complementarity and “Reverse Cooperation”
Federica Gioia, Legal Adviser, International Criminal Court
The contribution addresses a specific aspect of the relationship between complementarity and cooperation. Albeit both considered as milestones of the architecture of the Rome Statute, they are rarely brought together and jointly addressed.
The arguing revolves around article 93(10) of the Statute. The provision entitles the Court to “cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State”, whether party or non-party.
This assistance from the Court to States, oriented as it is in the opposite direction vis-à-vis the perspective in which cooperation in the Statute is usually addressed (namely, cooperation from the States to the benefit of the Court), is labelled as “reverse cooperation”.
It is submitted that, if complementarity is the cornerstone of the Rome Statute, and cooperation is key to its effective functioning, reverse cooperation might indeed sit at their crossroads.
Accordingly, reverse cooperation is looked at through the lenses of complementarity. On the one hand, it is highlighted that the ability of the Court to provide assistance to a State (including, without limitation, in evidentiary matters) might indeed prove attractive to a State wishing to overcome its “unavailability” (possibly consisting of its inability to “obtain the necessary evidence or testimony”) and prevent the ICC from stepping in. On the other hand, the risk that reverse cooperation be resorted to in bad faith, i.e. with a view to maliciously delaying or preventing the ICC from stepping in, is also noted and possible methods to avert it are suggested.
Finally, the experience of the International Criminal Tribunal for the Former Yugoslavia, whose closing strategy relies inter alia on returning cases to national courts and assisting them in becoming adequately prepared for the task, is also addressed.
‘States Obligations to Investigate and Prosecute Perpetrators of International Crimes: The Perspective of the European Court of Human Rights’
Harmen van der Wilt, Professor of International Law, University of Amsterdam
Although the European Court of Human Rights and the International Criminal Court operate within a different legal context and have different functions and goals, these courts definitely share some common ground. Both courts are expected to exercise subsidiary jurisdiction. The ICC’s principle of complementarity dictates that a case is only admissible before the Court if a state is ‘unwilling or unable’ to carry out investigations and prosecute itself. In respect of the European Court, the court’s subsidiary position comes to the fore in the ‘exhaustion of local remedies’ rule and in the provision that victims should enjoy an effective remedy under national law to have violations of their rights redressed (Article 13 ECHR). The philosophy sustaining the courts’ procedures emphasizes the primary obligations of states to deal adequately with human rights violations and international crimes.
This article seeks to explore whether the standards which have been developed by the European Court to expose member states as ‘under-achievers’ in respect of their procedural obligations may equally serve the ICC as useful guidelines in its assessment of ‘unwillingness’. The analysis of the European Court’s case law indeed reveals that those standards bear striking resemblance to the Rome Statute’s indicators of ‘unwillingness’. Section 4 of the essay puts the findings and assumptions to a critical test. After all, the distinctive aims of the Courts should not be ignored. Whereas the ICC may primarily be interested in the substantive quality of the state’s administration of criminal justice, the European Court is likely to stress the fairness of criminal procedures. In spite of these different perspectives, so the article concludes, the standards of the European Court on procedural obligations serve the ICC as a highly useful frame of reference, in order to find its way in largely uncharted terrain.
Admissibility of ‘Stuations’ before the International Criminal Court
Héctor Olásolo Alonso*, Professor, Utrecht University and Enrique Carnero Rojo**, Associate Legal Adviser, International Criminal Court
Some authors have expressed the view that “the complementarity test under Article 17 of the ICC Statute applies where the investigation into a given country or conflict situation has yielded a case. Nevertheless, article 53(1)(b) of the ICC Statute and rule 48 of the Rules of Procedure and Evidence of the Court (“ICC Rules of Procedure and Evidence”) appear to request the application of the complementarity test at a much earlier stage of the proceedings. As a result, the question arises as to what is the object of such an admissibility assessment, considering the early stage of the proceedings at which it must be carried out, as well as the fact that a case only arises at a significantly subsequent stage of the proceedings. This article intends to shed some light on this issue. It first analyses how the ICC Pre-Trial, Trial and Appeals Chambers have interpreted so far the distinction between the notions of “situation” and “case” provided for in the ICC Statute. It then turns its attention to the notion of “admissibility of situations” (as opposed to “admissibility of cases”). It analyses its content, relevance, and, most importantly, whether there is any room for such a notion under the current statutory scheme, as interpreted in the ICC case law so far. Finally, the last section of the article advances some guiding criteria for the performance of admissibility assessments of situations.
Situation and Case: Defining the Parameters
Rod Rastan, Legal Adviser, International Criminal Court
As the International Criminal Court establishes its early jurisprudence a host of issues have emerged that are starting to give form to the many of the concepts and terms contained in the Rome Statute. Much, however, remains undefined. The presentation will explore a number of these issues insofar as they relate to admissibility, together with an examination of the intersection between complementarity and jurisdiction and gravity. In particular, it will examine the parameters of situations (temporal, territorial, personal); of a case for the purpose of an admissibility challenge (the level of specificity required); the meaning of the terms ‘investigation’ and ‘prosecution’ for the purpose of Article 17; how admissibility is to be assessed at the Article 18 stage; and the impact of prosecutorial policy and gravity on the complementarity regime.
The Mysterious Mysteriousness of Complementarity and the Invisibility of the Inaction Scenario
Darryl Robinson, Queen's University
This paper addresses an unusual feature of the debate concerning complementarity. As several decisions of the Pre-Trial Chamber and statements of the Prosecutor have indicated, in the absence of national proceedings in relation to a case, the case is admissible before the ICC. Many commentators regard this position as a ‘gloss’, an ‘invented’ prong, and a departure from the Statute. Interestingly, such critiques are rooted in a sincere, firmly-held and widely-shared belief that the test in Article 17 provides that a “case is inadmissible unless the State is unwilling or unable genuinely to carry out the proceedings”.
This paper demonstrates that contrary to this popular simplification of the complementarity test, Article 17 expressly provides not a one-step test, but a two-step test, the first explicit question of which is whether a State is investigating or prosecuting the case or has done so (“the proceedings requirement”). Where there are no such national efforts at all (the inaction scenario), the case cannot be inadmissible under complementarity. Most importantly, this proceedings requirement is not a creative inference or an imaginative gloss; it arises from the literal, unambiguous text of Article 17.
Yet, the popular simplification of complementarity exercises such a powerful grip that when Court applies the actual Article 17, the Court is accused of ‘departing’ from the Statute and ‘inventing’ new requirements. For some reason, the 55 words of Article 17 that explicitly require a national investigation or prosecution persistently fall into a curious blind spot. While many commentators find it a mystery that the Court believes that a case is admissible in the absence of proceedings, the real mystery is why this proposition is controversial.
As the proceedings requirement is pivotal to the legality of the Court’s cases to date, this paper will make a valuable contribution if it clarifies that question alone. Moreover, once misplaced recriminations about Statute violations are set aside, we discover rich ground for a much more exciting debate about the role of the Court vis-à-vis national systems. For example, how can the risk of States shirking prosecutions be managed? What are the appropriate limits on ‘burden sharing’ arrangements? Such questions are not determined by the Statute text and hence remain to be resolved. It is hoped that this paper will help bring about and contribute to that debate.
Theme: Complementarity in Practice: Experiences from ICC situations - Colombia, Sudan, Central African RepublicComplementarity in Practice
Complementarity in Practice
Paul Seils, United Nations
While it is too early to make any definitive judgement, the impact of the ICC so far on national prosecutions has been minimal. Not all of this can be blamed on the Court but a number of opportunities have been missed and it is time to reassess how the issue of complementarity is dealt with in practice.
There are four basic problems that have severely limited the court’s impact on national proceedings. One is a mindset issue where there remains a sense of “looking for business”, illustrated most clearly in the position of the Office of Prosecutor in respect of Uganda’s alleged interest in promoting national proceedings against Kony and the other accused in that situation. The second is the distraction of so-called positive complementarity. The third is the reluctance on the part of the prosecutor to use proprio motu powers. And finally, the simple lack of sufficient presence of the Court in countries under preliminary examination limits the both the knowledge for informed assessments and the pressure for real action.
The good news is that all of these problems can be easily remedied and as such the Court can have a much greater impact in promoting national prosecution efforts in future. As it gets busier, the Court will become less insecure about having a sufficiently full dock. If it also rids itself of the temptation to make a difficult job harder through divisions of labour and technical assistance as between the Court and national jurisdictions it can focus on the core job of investigating and prosecuting. Its message will be clearer and expectations more realistic. Above all, in a practical sense, the Office of the Prosecutor should revisit the way it approaches the preliminary examination phase. Understanding and assessing national prosecution efforts can be difficult. It often requires that people with sound experience in investigating and prosecuting crimes engage substantively, not superficially, with lawyers, judges and NGOs in countries where such efforts are ongoing. The team responsible for such examinations should spend much more time in the countries concerned, developing real relationships with the relevant personnel for the purposes of obtaining information, and making informed assessments of how domestic courts and prosecution services actually work in practice.
The assessment of jurisdiction and complementarity in the terms described here would be best carried out by a team of legal experts with relevant experience situated in the Legal Advisory Section of the Immediate Office of the Prosecutor.
The Colombian Peace Process and the Complementarity Principle
Kai Ambos, Professor, Georg-August-Universität Göttingen
The paper intends to assess the Colombian peace process, as regulated by Law 975 of 2005 (Ley de Justicia y Paz), with a view to Colombia’s obligations under Art. 17 ICC Statute. It first gives an overview of the process under Law 975, taking into account not only the relevant norms, but, especially, the practice of this process. In the second part, the complementarity test of article 17 ICC Statute is systematically analysed and applied to the Colombian situation. First, the object of reference of this test, in particular the distinction between situation and case, will be examined. Then, the actual complementarity test will be analysed distinguishing between complementarity stricto sensu on the one hand, and an additional gravity threshold on the other.
A Problem, Not a Solution: Complementarity in the Central African Republic and Democratic Republic of Congo
Marlies Glasius, Lecturer in International Relations, University of Amsterdam
This paper will assess the potential and limitations of positive complementarity as a tool to enhance the International Criminal Court’s capacity to end impunity and enforce justice in two of the contexts where the court has opened an investigation: the Central African Republic and the Democratic Republic of Congo. It will place the aspiration to achieve positive complementarity in these countries in its socio-political context. This context, it will argue, is one of near-total administrative incapacity to conduct criminal trials in general, and of political unwillingness to prosecute war criminals in particular. Efforts at domestic prosecution cannot be abandoned, but they are best construed as a problem in their own right, not a solution to the International Criminal Court’s capacity constraints. The following would appear to be necessary but not always sufficient ingredients for successful domestic prosecution: funding and pressure from the international community, active involvement of local and international civil society actors, and courage and initiative on the part of individual judges and prosecutors. The International Criminal Court can only play a modest part in fostering a more enabling culture for such prosecutions. Its main contribution to the restoration of the rule of law is to lead by example.
Darfur: Complementarity as the Drafters Intended?
Robert Cryer, Professor of International and Criminal Law, University of Birmingham
When the International Criminal Court was set up, the feeling about complementarity was that the Court was to exist in a slightly antagonistic relationship with domestic jurisdictions. The idea was that the ICC would prod them with the not-so-implicit threat that if they did not prosecute international crimes, the ICC would step in and do so. However, even early on some scholars noted the ‘complementarity paradox’, that the ICC would have to rely on the assistance of authorities that it had declared to be unwilling or unable to prosecute those crimes. As a result, the Prosecutor has attempted to move towards a more constructive relationship between the ICC and national jurisdictions, assisting them, and largely shying away from prosecuting governmental officials, on the basis of a policy of ‘positive complementarity’, with one exception. This is Sudan. Following the referral of the situation in Darfur to the court by the Security Council in Resolution 1593, the Prosecutor has declaimed the lamentable failure of Sudan either to prosecute government officials suspected of crimes, or permit the ICC to take custody of them. This has reached its apogee in the indictment of the President of Sudan, Omar Al Bashir, for war crimes and crimes against humanity. This paper will investigate the way in which the attitude of the Prosecutor towards Sudan reflects the original concept of complementarity, and thus seek to reflect on the difficulties that have accompanied the concept, perhaps from the part. It will also look at the extent to which the Security Council could (or could not) have altered the complementarity regime in the Sudan referral, and whether that would, in fact have made any difference.
In a State of Denial: the Catalysing Effects of Complementarity in Sudan
Sarah Nouwen, Doctoral Candidate in International Law Cambridge University
According to the Court's first Prosecutor, the most successful International Criminal Court would be a Court that catalyses national proceedings. On the basis of extensive research in Sudan, the author discusses the catalysing effects of the Court's complementarity principle in Sudan, ranging from attention for transitional justice and Special Courts to new laws that pick and chose from international criminal law. Equal, if not more, attention will be paid to all catalysing effects that were predicted, but that have not (yet) occurred.
Theme: Complementarity in practice: Uganda and the DRC
Horizontal Complementarity
Cedric Ryngaert, Assistant Professor of International Law, Leuven University and Utrecht University
The complementarity principle was conjured up by the drafters of the Rome Statute. As such, it was designed for vertical application. Indeed, a supranational institution, the International Criminal Court (ICC), would supervise the investigative and prosecutorial work of States, and assume its responsibilities if that work proved to be below acceptable standards. So far, however, scant attention has been paid to the horizontal dimension of complementarity. Horizontal complementarity, the term used in this contribution, refers to the complementary prosecutorial role played by ‘bystander’ States, these are States that do not have a strong nexus with an international crime situation (and that are, for instance, exercising universal jurisdiction), vis-à-vis States that are directly concerned with such a situation, e.g. because the situation occurred on their territory or because the crimes were perpetrated by their nationals (hereinafter denoted as ‘the territorial/national State’, or generically, as ‘the home State’).
When the ICC and bystander States acting under the universality principle investigate and prosecute international crimes, they may be considered as acting as agents of the international community.[1] Because they both vindicate international interests, it appears logical that they apply the same principles, not only at the level of substantive law (many States Parties to the Rome Statute have indeed incorporated the Statute’s incriminations upon ratification) but also at a procedural level. One of the central procedural principles in the Rome Statute is precisely the principle of complementarity. In the past the author has argued that ‘[t]here is no compelling reason for international and national courts to use a different standard for subsidiarity/complementarity, certainly not for States that have ratified the ICC Statute and have thus subscribed to the vision of justice underlying the complementarity principle’.[2] At the time, however, the author did not theoretically flesh out that claim to the fullest extent, as he was mainly concerned with identifying relevant tendencies in State practice and emerging rules of customary international law. In this contribution, he revisit his doctrinal position by listing the arguments for and against horizontal complementarity. He subsequently links the insights of this theoretical discussion to the most recent State practice, especially in Spain. Because most universality cases are currently brought in Spain (which boasts probably the world’s most liberal universality statute), Spain provides a fertile breeding ground for the application, or non-application for that matter, of a horizontal complementarity principle. Not surprisingly, it will become clear that the author is in favour of the application of a horizontal complementarity principle. Carrying out a horizontal complementarity analysis is normatively desirable for a number of reasons, not least the imperative of respecting and encouraging genuine proceedings in the home State, and forestalling diplomatic tension arising from overly broad jurisdictional assertions.
[1] Compare the Rome Statute of the ICC, fourth preambular paragraph (‘Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation’).
[2] C. Ryngaert, ‘Applying the Rome Statute’s Complementarity Principle: Drawing Lessons from the Prosecution of Core Crimes by States Acting under the Universality Principle’, 19 Criminal Law Forum 153, 178 (2008).
‘Complementarity in practice in the Srebrenica Trials: The Admissibility of Evidence collected by the Yugoslavia tribunal before the Bosnian War Crimes Chamber. Challenges and Compromises.'
Fidelma Donlon, Doctoral Candidate, Irish Centre for Human Rights
The principle of complementarity enshrined in the Rome Statute Preamble states that ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. War frequently causes the substantial collapse and destruction of national judicial systems. Although States may be willing to prosecute perpetrators, they are rendered unable to do so. A chronic lack of the resources required to obtain, secure and preserve crucial evidence and testimony challenges the successful prosecution of international crimes.
A coordinated approach to the prosecution of crimes underpins the principle of positive complementarity. The ICC Prosecutor has pointed towards a two-tiered policy to combat impunity. On the one hand the Court will initiate prosecutions against persons who bear the most responsibility for the crimes. On the other hand the ICC will encourage national prosecutions, where possible, for the lower-ranking perpetrators.
The concrete implementation of this policy will entail the use and admission of information and evidence collected by the ICC before national courts. To protect the rights of the accused and guarantee the successful use of evidence, States will arguably have to adopt specific legislation to govern the admission of evidence which was collected outside the parameters of national procedures. This paper will examine the admissibility of evidence from the ICTY Srebrenica cases in trials before the Bosnian War Crimes Chamber.
Evidence from the ICTY is not ipso facto admissible before the War Crimes Chamber. The matter is regulated by the Law on the Transfer of Cases from the International Tribunal and the Admissibility of Evidence. This paper will consider the challenges to the admissibility of the evidence before the national court. The debates which occurred during the Bosnian legislative process will be considered to identify the legislative purpose of the Law on Transfer. The principles established by the jurisprudence of the European Court of Human Rights regarding the admissibility of evidence will be identified to determine whether the rights of the accused before the Chamber are compromised or protected by the admission of such evidence. Finally, as a concrete example of positive complementarity in practice, this paper will review the admission of ICTY evidence in the ‘Kravica Warehouse’ case which involved the trial of multiple perpetrators before the War Crimes Chamber for the massacre of over one thousand Bosnian Muslim men and boys in Srebrenica.
Complementarity as Global Governance
Christoph Burchard, University of Tübingen
The traditional understanding of the ICC’s complementarity regime ‘contemplate[s] an institution that may never be employed’.1 Burchard submits that this understanding misses important theoretical as well as practical facets of complementarity. To arrive at this conclusion, he will analyze the complementarity principle from the point of view of global governance theory. This will reveal that, unlike an ordinary court of (criminal) law, the ICC is not only called upon to prosecute international crimes and thus target international criminals. Rather, it is also an important player which contributes to the establishment of a multileveled (local/national/regional/international) enforcement regime of international criminal law; a multileveled system which not only interacts with (former) conflict states, but also with third states that – at minimum – must not be safe harbors for international criminals. As such a player, the ICC also addresses (sub-)national actors, especially domestic political elites and domestic law enforcements agencies; the ICC changes their perceptions about the imperative to fight impunity of core crimes; further, the ICC sets both incentives for compliance as well sanctions for non-compliance with this imperative. Complementarity as a legal principle has to be interpreted and analyzed with all of these indirect missions and indirect addressees in mind: The traditional understanding of complementarity is of course correct in that the ICC only has jurisdiction in cases where states are unable or unwilling to genuinely prosecute international crimes (Article 17 [1] [a] ICCSt); only national governance deficits thus authorize the ICC to substitute national criminal justice systems. Substitution thus serves as a means of sanctioning national deficits in a multileveled enforcement context. While this is readily accepted – and indeed the historic experience since Nuremberg, which anticipated and thus averted the failure of German post-war criminal ‘justice’ –, the ICC departs from its ad hoc predecessors (inter alia IMT, ICTY, ICTR) in that it is a permanent actor which serves as a constant point of reference for national criminal justice systems. The ICC first of all serves as a permanent evaluative instance for the effectiveness of criminal justice structures at the national level; after all, without a negative evaluation (namely the determination of national inability and unwillingness), the ICC would not be allowed to take action. What is more, unlike its ad hoc predecessors, this evaluation has a profound legal framework (found in Article 17 ICCSt; ICTY and ICTR find their legal framework in the rather indeterminate Chapter 7 UN-Charter) and is delegated to a juridical institution (with regard to the ICTY and ICTR, a political organ – the UN-SC – was in charge). In addition, as a permanent actor, the ICC contributes to the passive adaptation of deficient criminal justice systems. Thus it serves as a catalyst for national reforms. The implementation of the ICCSt into the legal orders of its Member States is only one – and one of weakest – examples. Furthermore, the ICC may also come to understand complementarity as pro-active complementarity (Burke-White), and thus its mission as pro-active adaptation of deficient criminal justice systems. All these indirect missions distance the ICCs complementarity regime from its commonplace understanding as a jurisdictional prerequisite for adjudicating on individual criminal responsibility. I therefore submit complementing complementarity: it empowers the ICC to evaluate, substitute (sanction) and adapt deficient national criminal justice and thus furthers, bolsters and secures a wider global governance regime against impunity for core crimes.
1 Holmes, ‘Complementarity’ in: Cassese et al. (eds.), The Rome Statute of the International Criminal Court, Vol. 1, at 667.
Theme: Complementarity in perspective
The ICC and the Challenges of Complementarity in Congo and Uganda
Philip Clark, Research Fellow, Oxford University
This paper explores the practical implementation of the ICC's principle of complementarity in the situations of the Democratic Republic of Congo (DRC) and Uganda. Drawing on six years of fieldwork and more than 500 interviews with international and domestic actors, including rural populations in eastern DRC and northern Uganda, the paper analyses how the principle of complementarity - especially within the ICC Office of the Prosecutor - has evolved theoretically over time, the events on the ground that have triggered significant shifts in the ICC's interpretations, how these changes have translated to practical shifts in ICC policy in the DRC and Uganda, and the often problematic outcomes of these strategies, principally for the long-term maintenance of the domestic rule of law. The paper advocates a significant re-think of complementarity in both theoretical and practical terms, especially in countries such as the DRC and Uganda that are experiencing ongoing conflict and major domestic legal reform.
Complementarity in Practive: Practitioners Observations from Uganda
Marieka Wierda, International Centre for Transitional Justice
There may be a tendency in some circles not to see what has happened in Uganda through the lens of complementarity. To date, a national investigation into those LRA leaders under arrest warrants from the ICC has yet to be opened, and any question of a challenge to the jurisdiction of the ICC is premature as remarked by the Court itself. But at the same time the case of Uganda highlights many important aspects of how complementarity may operate in practice. In Uganda, the ICC arrest warrants were a central issue in the peace talks between the Government of Uganda and the LRA held at Juba from 2006-2008. This caused mediators and the parties to seek innovative solutions to accountability questions that sought to be compatible with the Rome Statute. It was significant that those involved did not seek to argue that traditional justice by itself would suffice to fulfill complementarity. The proposal put forward during the Juba Agreement represents a comprehensive vision for national accountability which, if it were fully implemented, would be highly significant for Uganda moving forward out of years of conflict. The fact that Juba was not signed of course complicates the pursuit of this vision.
Nonetheless, some elements of Juba are moving to implementation. Among the Juba mechanisms is a War Crimes Division. The WCD was set up under Uganda’s Justice, Law and Order Sector. However, the establishment of the War Crimes Division has brought a new range of technical and legal challenges, many of which are instructive on challenges faced by domestic systems in exercising complementarity. For instance, an International Crimes Bill has recently been proposed in Uganda but to what extent is Uganda able to try international crimes in the view of a Constitutional prohibition on retroactivity? If it does not include or charge such crimes, can it still assert complementarity under the recent jurisprudence of the Court? Should the War Crimes Division try state actors? How accessible will national trials be to the population of Northern Uganda? How should the War Crimes Division approach the issue of sentencing when the conflict is still ongoing? What would be the incentive today for LRA combatants to lay down their arms if they know they face charges in national courts (such as in the recent case of Kwoyello)? What should be done about the public perception that insistence on prosecution during the negotiations led to a breakdown of the talks? These questions will be discussed in this paper.
The author has been engaged in Uganda for five years, doing research and advising on transitional justice in Kampala and the North. She also advised the Juba Peace Talks and is currently assisting JLOS with a variety of issues.
Theme: Operationalizing Complementarity in the ICC system
In the hands of the State: Implementing Legislation and Complementarity
Olympia Bekou, Lecturer in Law, University of Nottingham
The paper discusses the link between complementarity and national implementing legislation. It focuses on the correlation between States’ expectations and the adoption of variant national views on complementarity. Through an overview of different State approaches that facilitate, obstruct or reinterpret complementarity, the paper argues that implementing legislation offers an effective typology of complementarity which in turn provides good insight into how States, upon whose actions or inactions the system is based, appreciate the principle and its ramifications in practice.
For a Complementarity-based advocacy
Cyril Laucci, Lawyer
For the Rome Statute to be adopted, it has been necessary to encourage efforts and muster support from an unprecedented collection of organizations, people and scholars from all regions of the world and all cultural backgrounds. The idea of having a permanent International Criminal Court in charge of prosecuting most serious international crimes did manage to gather a wide, though not universal, consensus among people from the five continents, international organizations, churches, human rights and humanitarian organizations, etc. The idea of an International Criminal Court is much less consensual today than it was in 1998 and major criticism is unleashed against the Court.
This criticism has reached unprecedented dimensions since the Court’s decision to issue a warrant of arrest against Sudanese President Omar al-Bashir on 4 March 2009, especially in Africa and in the Muslim world. The consequential expulsion of all humanitarian NGOs from Sudan has broken the former consensus – or quasi-consensus – among NGOs in favour of the Court. Several organizations, which are still persuaded of the usefulness of the Court, do not dare to address the issue anymore, or do not know how to address it, especially in an African or Muslim context. The ICC is slowly becoming a taboo.
However, most of the criticism relies on the assumption that the Court is a supra-national body empowered to prosecute and arrest whoever it wants, without any control. This assumption is far from reality and omits, most often deliberately, the principle of complementarity.
Under the Rome Statute, in particular its Preamble and Article 1, the prosecution of international crimes constitutes the principal aim of establishing the ICC a task primarily undertaken before domestic courts, which can be complemented by the ICC. As such, the ICC one tool, among many of international criminal justice. Firstly, domestic courts, which shall have as broad a jurisdiction as possible under national law with respect to international crimes and which shall be properly trained in order to be prepared to deal with international crimes. A second example is universal jurisdiction, which is provided, at least for war crimes, under Geneva Conventions 1949, which are universally ratified and for which domestic full implementation shall be encouraged.
Instead of focusing on the ICC alone, good strategies of advocacy should replace this body within the whole framework of international criminal justice. Promoting domestic prosecution of international crimes forms part of the mandate of the Court, since the prosecution of international crimes constitutes its principal aim. The Court is not only a remote body which takes people under arrest to Europe and collects statements from victims and witnesses of crimes. The Court is also, or should be, an international organization promoting the proper implementation of the principle of complementarity by States and the strengthening of domestic capacity to prosecute and try serious international crimes. The Court’s own outreach programs should insist on this direct impact of the Court in Situation countries. Victim assistance programmes developed by the Trust Fund for Victims are also crucial in showing the concrete impact that the Court can have on people affected by international crimes.
For NGOs and other organizations advocating for the Court, emphasis on the primary necessity to prosecute international crimes and on the principle of complementarity also makes messages much easier to convey and understand. States’ obligations to prosecute international crimes is universally admitted. The Court is no more than a way to prosecute them, which is complementary to domestic prosecution and which should logically remain residual, the bulk of crimes and perpetrators being prosecuted before domestic courts.
Complementarity and Alternative Justice
Gregory Gordon, University of North Dakota
Certain commentators believe that domestic resort to alternative justice mechanisms (ARMs), such as Uganda's "mato oput" (a local tribal rite) or truth commissions, can relieve the International Criminal Court of its obligation to prosecute under the complementarity principle. However, this literature provides only general suggestions for how the ICC could determine whether alternative mechanisms render a case inadmissible under the complementarity regime. This paper proposes a concrete set of analytic criteria the ICC can use to formulate an admissibility test for conducting complementarity analysis in difficult cases of municipal reliance on ARMs.
The admissibility test entails consideration and parsing of five categories: (1) the circumstances surrounding the ICC referral and request for deferral; (2) the political system and infrastructure in the domestic jurisdiction; (3) the ARM itself; (4) the crimes at issue; and (5) the prosecution target. The article then applies the test to the case of the ICC-indicted Ugandan Lord's Resistance Army (LRA) leaders and the ARMs recently proposed in the LRA-Uganda peace accord. The paper will demonstrate that, although the Ugandan situation does not, some alternative justice proposals might pass the proposed complementarity admissibility test. In the end, this analysis helps illuminate our increasingly complex understanding of the relationship between international criminal law and local initiatives in situations of gross human rights violations. Effective atrocity justice, the paper contends, entails a proper division of labor between local restoration and global retribution. While complementarity could be the ideal medium through which to achieve that allocation, the proposed analytic criteria must be used to weave both peace and justice more seamlessly into the procedural fabric of international criminal law.
Positive Complementarity
Christopher Hall, Amnesty International
The Court is not meant to be a passive institution, simply waiting for the Security Council, states parties and Article 12 (3) states or others to seize the Court. It has its own responsibility to inspire states to fulfil their duties, not merely by example, but also by actively encouraging them to bring those responsible for crimes under international law to justice. In situations under investigation, the Office of the Prosecutor should vigorously investigate and, where there was sufficient admissible evidence, prosecute not only the highest level suspects, but also, if necessary, to reach down lower. In so doing, it might shame national authorities to do their bit by investigating and prosecuting all the other cases that were beyond the Court’s current resources.
Second, the Office of the Prosecutor should encourage states to ratify the Rome Statute and the Agreement on the Privileges and Immunities of the International Criminal Court (APIC) and to enact effective implementing legislation to give their police, prosecutors and investigating judges the necessary tools to end impunity.
A policy of leaving it to states to devise alternatives to justice appears to be in direct conflict with the Preamble of the Rome Statute, in which the states parties affirmed “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level”, determined to put an end to impunity for the perpetrators of these crimes” and recalled that it “is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”. No exceptions are listed.
Theme: Complementarity and Litigation: Implications of the Katanga decision
'Unable and Unwilling': Challenges to Admissibility and the Burden of Proof
Joseph Powderly, Doctoral Candidate, Irish Centre for Human Rights
Despite lying at the heart of the functionality of the International Criminal Court, Article 17 of the Rome Statute, which embodies the complementarity principle, fails to adequately address a number of key issues surrounding the operation and interpretation of this pivotal regime. Specifically, the Statute neglects to delineate the standard of proof that must be met in order for the Court to find that a state is unwilling or unable to carry out an investigation or prosecution. What is more, there is scant guidance as to which party should bear the burden of proof in this regard. Regrettably, further enlightenment on these issues is unlikely to be distilled from the Rules of Procedure and Evidence. It is clear, however, that blanket assertions to the effect that the burden will always fall squarely on the Prosecutor ignore the multitude of scenarios in which the Court may be called upon to rule on admissibility. In spite of the ICC’s emerging body of jurisprudence addressing certain elements of the complementarity principle, questions relating to the requisite evidentiary standards and burdens have remained largely unanswered. In considering these crucial operational elements of the regime, this paper will look at burdens and standards of proof both generally and in specific relation to complementarity, considering the potential scenarios that may arise in relation to State referrals, proprio motu investigations and in particular, Security Council referrals. Rather than provide definitive answers regarding the questions of applicable burdens and standards of proof, this paper aims to contribute to the dialogue on these issues, first and foremost by examining the emerging ICC jurisprudence while also drawing upon the experience of other courts operating in the international and municipal realms, including the practice of the UN ad hoc tribunals.
The Katanga Jurisprudence and Objectives of Complementarity
Katherine Cleary and Susana SáCouto, War Crimes Research Office, American University Washington College of Law
On 16 June 2009, Trial Chamber II of the International Criminal Court (ICC) issued a seminal decision in the case of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui in response to a motion challenging the admissibility of the case filed by the accused Germain Katanga. Mr. Katanga is currently awaiting trial at the ICC on charges of war crimes and crimes against humanity arising out of a February 2003 attack on the village of Bogoro in the Democratic Republic of Congo (DRC). In his motion, the defense claimed that the case against Mr. Katanga violated the principle of complementarity, relying primarily on the fact that, prior to the issuance of an ICC arrest warrant, Mr. Katanga had been indicted for a number of other crimes against humanity by national authorities in the DRC, and there has been no finding by the ICC that the DRC was unable to genuinely and fairly try its case against Mr. Katanga. The Trial Chamber rejected Mr. Katanga’s motion, holding that a state may be deemed “unwilling” to prosecute an individual within the meaning of Article 17 of the Rome Statute if it prefers to see that individual prosecuted in an international court rather than in its own courts. Because Article 17 provides that a case is admissible where a state is either “unwilling” or “unable” to prosecute a case, the Chamber did not consider whether the DRC would be able to try Mr. Katanga. Hence, under the Chamber’s decision, the ICC may pursue a case against an individual who is the target of an investigation or prosecution in the individual’s home state, so long as the national authorities do not object, even where that individual was going to be genuinely and fairly investigated and prosecuted for the same charges or even for a wider array of charges in a national court.
The War Crimes Research Office is currently drafting a report exploring the impact of the Trial Chamber’s June 2009 decision on the selection strategy of the ICC Office of the Prosecutor. Our point of departure is that the Chamber’s decision, while defensible under the terms of Article 17 and the notion of complementarity, could produce consequences inconsistent with other equally important principles underlying the Rome Statute.
First, permitting the ICC Prosecutor to pursue individuals who are already the target of genuine and fair prosecutions by national authorities may, as a practical matter, detract from the goal of combating impunity. This is so because the ICC is a court of limited resources, meaning that for each case it pursues, there are likely a number of other worthy cases it forgoes. Hence, where the ICC prosecutes an individual who would have otherwise faced prosecution – even if for a different set of crimes, assuming the charges are not sham charges intended to shield the individual from the ICC – the Court is potentially forgoing the prosecution of another individual who may not otherwise be held accountable in another forum.
Second, prosecuting a case at the ICC rather than allowing a national court to try the same or a similar case may interfere with that state’s duty to exercise its criminal jurisdiction over those responsible for international crimes. Given these potential consequences, we are developing recommendations premised on the idea that the ICC Prosecution should revisit its strategy of “positive complementarity” in order to develop practices that may better fulfill not only the goals of complementarity, but also those relating to combating impunity and developing states’ domestic capabilities to try egregious crimes within their own courts.
The Katanga Jurisprudence and Acceptance of Self-Referrals
Lorraine Smith and Colin Smith, International Bar Association
The authors will argue that the International Criminal Court has failed adequately to defend the principle of complementarity. Through this failure, it has become complicit in the refusal of some States to confront the most serious violators of international human rights and humanitarian law on the domestic level. Specifically, the Court has too readily embraced the idea that States with jurisdiction over international crimes may waive that jurisdiction and allow the case to proceed before the ICC.
The authors discuss a recent decision in the Katanga trial in which Trial Chamber II dismissed a Defence challenge to the admissibility of the case brought on the basis that proceedings against Mr Katanga had been initiated in the Democratic Republic of Congo before the situation in that country had been referred to the ICC by its own government. Mr Katanga’s lawyers argued that the Prosecutor ought not to have sought an arrest warrant against their client and that an unduly narrow test had been applied by the Chamber to determine whether the case against him was proceeding on the domestic level. In dismissing the Defence challenge, the Chamber adopted what the authors contend to be an unduly broad interpretation of the concept of unwillingness to prosecute as it pertains to the admissibility of cases pursuant to Article 17 of the Statue. The Chamber held that the decision of the Democratic Republic of Congo not to prosecute Mr Katanga domestically and to refer the case to the ICC was a legitimate waiver of jurisdiction consistent with the principle of complementarity. The authors will argue, on the contrary, that the Chamber’s decision is inconsistent with the purposes of the Court as expressed explicitly in the Statute and that it is wholly at odds with the duty of all States, as members of the international community, to investigate genocide, crimes against humanity and war crimes and to prosecute those responsible for their commission.
The authors accordingly contend that the Chambers should guard against the adoption of too expansive an approach to admissibility based simply on a State’s unwillingness to comply with its international legal responsibilities in relation to the prosecution of international crimes. And just as the Bench should defend the principle of complementarity in the courtroom, so the Prosecutor and the Outreach Unit of the Public Information and Documentation Section of the Registry and, indeed, the ICC as a whole, should defend it without by adopting a policy of ‘positive complementarity’, including legal reform and capacity building on the national level to facilitate domestic prosecution of international crimes in States Parties to the Rome Statue. The paper will conclude with a number of concrete suggestions as to how this might be achieved.
Keynote speeches
The ICTY and the Transfer of Cases or Materials to National Authorities: Lessons in Complementarity
David Tolbert, Registrar, Special Tribunal for Lebanon
While the ICC’s work, like that of the ICTY, will continue to largely focus on its investigative and judicial work, rather than on issues of transitional justice, it has an historic opportunity to support transitional justice efforts in the countries in which it works.
This support will no doubt vary from country to country, sometimes providing information and evidence to national prosecutors, in other cases to truth and reconciliation commissions, and perhaps to other investigations as well. Thus, some advanced work, including the establishment of internal structures and data bases, would be very useful in preparation for those opportunities. Hopefully, the ICC will learn from the positive aspects of the ICTY’s transfer of cases and materials while avoiding the ICTY’s first decade of largely failing to engage with the region and its legal professionals in meaningful ways, thus losing opportunities to make a difference in terms of transitional justice and reconciliation.
Mr. Luis Moreno-Ocampo, Prosecutor of the ICC, gave a keynote speech on 15 September. For further information please consult the Prosecutorial Strategy for 2009-2012.
Ms. Silvana Arbia, Registrar of the ICC, gave a keynote speech on 16 September. For further information please consult the Plans of the Registrar of the ICC report.
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