The future of the International Criminal Court: complementarity as a strength or a weakness?(Symposium: The International Criminal Court at Ten)

• Published date: 22 September 2013
• Author: Carter, Linda E.
• Date: 22 September 2013

INTRODUCTION

The "complementarity" principle that shapes the relationship of the International Criminal Court (ICC) with national jurisdictions is both criticized and applauded. The idea is that states have the primary responsibility to investigate and prosecute the crimes (1) in the Rome Statute, (2) with the ICC as a backup court. (3) The built-in deference, or complementarity, of the ICC to national prosecutions respects state sovereignty and places significant control within national jurisdictions. At the same time, the ICC's secondary role arguably weakens the Court's position as a means to achieve accountability for genocide, crimes against humanity, and war crimes.

This Essay examines the strengths and weaknesses of the complementarity principle. The Essay then considers reconceptualizing the "success" of the ICC from an expectation of adjudicating cases to an expectation of fostering national prosecutions. If the ICC's role is viewed through the lens of increasing the capacity of national jurisdictions to adjudicate international crimes, the measures of the ICC's success will move from its own prosecutions to efforts to educate, assist, and facilitate national prosecutions. The focus on assisting in the development of national capacity is sometimes called "positive complementarity." (4) This emphasis, in turn, should suggest a different strategy for the ICC in developing national capacities. Recommendations for how the ICC can increase its role in developing national capacities are proposed, including the establishment of an Institute or Center. While complementarity could prove to be either a strength or a weakness, the Essay concludes that, with a revised definition of success and a stronger focus on capacity building, complementarity likely will prove to be a strength of the ICC as an institution.

I. COMPLEMENTARITY AND THE ROME STATUTE

The Preamble to the Rome Statute, the treaty through which the ICC was established, (5) expressly recognizes the importance of complementarity:

 the International Criminal Court established under this Statute
                 shall be complementary to national criminal jurisdictions ... (6)
                

The idea that the ICC will be secondary to prosecutions in national jurisdictions is strikingly different from the ad hoe international criminal tribunals created by the United Nations Security Council for adjudicating cases from the former Yugoslavia and Rwanda. Both the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) are based on a principle of "primacy." Those tribunals can preempt a prosecution in a national jurisdiction if the tribunal decides to proceed. (7) The Special Court for Sierra Leone (SCSL), a tribunal established by agreement between the government of Sierra Leone and the United Nations, similarly operates under a primacy principle. (8) Part of the reasoning behind adopting a complementarity approach with the ICC was to balance a concern for state sovereignty with the creation of an international authority by giving states the first option to prosecute cases. (9) The effect of complementarity should be to encourage national prosecutions for genocide, war crimes, and crimes against humanity. (10)

In addition to the general language in the Preamble, Article 17 of the Rome Statute in particular implements the principle of complementarity. Article 17 sets out the admissibility standards for cases before the Court. Cases are not admissible in the ICC if a state with jurisdiction (1) is investigating or prosecuting the case, (11) (2) has investigated and decided not to prosecute, (12) or (3) has already tried the individual for the conduct and the retrial would be barred under the ne bis in idem provisions of the statute. (13) A case is also inadmissible for a fourth reason if it is not of "sufficient gravity." (14) The first three reasons to reject admissibility of a case in the ICC directly reflect deference to national prosecutions. The only exception (15) occurs when a state with jurisdiction is "unwilling or unable genuinely to carry out the investigation or prosecution" (16) or "the decision [not to prosecute] resulted from the unwillingness or inability of the State genuinely to prosecute." (17) Unwillingness occurs when a state is shielding a person from criminal responsibility or is conducting proceedings "inconsistent with an intent to bring the person concerned to justice." (18) Inability arises when a national system is so impacted that it cannot proceed with obtaining evidence or trying the individual. (19)

It is clear from the Preamble and the purpose of Article 17 that national jurisdictions can preempt the ICC from going forward with a case by conducting a good faith investigation and a subsequent prosecution or decision not to prosecute on the national level. Complementarity is a powerful device for national jurisdictions to maintain control of criminal matters and to limit the reach of the ICC. The principle is also strong motivation for national jurisdictions to prosecute international crimes, which in turn is important to an overall goal of the ICC to end impunity for atrocities. Given the significant control by states, is complementarity a weakness or a strength of the ICC as an institution? The next part considers why complementarity might be a weakness and is followed by a part that considers why it might be a strength.

II. COMPLEMENTARITY AS A WEAKNESS

There are at least two primary concerns with complementarity. One is inherent in the structure of the ICC, and the other is in the implementation of the statutory mandate.

A. Inherent Problem

An inherent problem exists because with complementarity the Court is secondary to national jurisdictions, and in that sense is weaker than other international criminal courts such as the ICTY and ICTR, which have primacy over national jurisdictions. One effect of this inherent weakness is that the Court wields less authority over the states; the states have the option of maintaining the upper hand vis a vis the Court. It is within the power of the states to go forward with investigations and prosecutions, preempting the Court. If the ICC's Prosecutor wants to advance a case, there may be legal hurdles in the way. This is already happening with admissibility challenges to the Court's jurisdiction by Kenya and Libya. (20) These specific challenges are discussed below as an implementation issue.

The inherent structure of the relationship of the Court and states may be a weakness for another reason. The effect of the secondary status of the ICC is that the Court will, and, in fact, should try fewer cases than the other international criminal courts. This is a success for the ICC if it means national jurisdictions are trying international crimes, but it is also qualitatively different from the ICTY and ICTR, which focus on both the number of cases tried as well as the fairness of the proceedings. (21) The ICC is not going to be comparable in numbers of cases and this could be viewed as a weakness. However, if we shift the conversation from "no cases" to affirmative efforts to build national capacity, then we could measure the ICC as an institution based not only on its adjudications, but also on its success with establishing national capacity. This redefinition to include capacity building as a measure of success would partially alleviate the inherent weakness of complementarity.

B. Implementation Problem

In addition to an inherent issue, there is also an implementation concern that complementarity at least indirectly creates a tension between the Court and national jurisdictions. This occurs due to admissibility challenges and also to the perception that the ICC is focused on weaker nations.

In an admissibility challenge, a state will often be pitting itself against the Office of the Prosecutor (OTP) in raising the issue whether the ICC or the state should investigate or prosecute. Litigation always raises tensions, but that pressure is heightened when there is also a political dynamic involved. Although a party can bring admissibility challenges, Article 19(2)(b)-(c) (22) provides an avenue for a state to bring the challenge, which adds a political dimension.

To date, two states have challenged the admissibility of cases in the ICC. (23) Kenya challenged the prosecution of two cases, involving six high-level government officials and opposition. Pre-Trial Chamber II rejected Kenya's challenge (24) and the Appeals Chamber affirmed. (25) Legal commentators are debating the merits of the analysis by the Court and whether this was a proper interpretation of the statute in light of the purpose of complementarity. (26) In the second case, Libya has challenged the admissibility of cases involving two members of Moammar Gaddafi's inner circle. Pre-Trial Chamber I rejected the admissibility challenge with regard to one accused, retaining the case in the ICC; the Chamber found the case inadmissible, however, with regard to the second accused, which leaves jurisdiction with Libya to try the case. (27) These issues, too, are much debated in commentary and in the press. (28)

In part because these are issues of first impression in interpreting the statute, they are creating much attention. Embedded in the focus on admissibility, however, is the question of who will prevail--the ICC or the state? This was never an issue with the ICTY or ICTR. There is the potential for the ICC to lose credibility if states believe that decisions against them on admissibility are incorrect. Nevertheless, admissibility challenges are regulated through the statutory scheme. Although this is one part of the tension, there is a principled legal process for resolving those issues. Although individual states may take issue with the Court's ruling in a specific case, once the legal analysis is more settled, (29) this should...