Introduction
The International Criminal Court (ICC) is the first permanent institution for international criminal justice. Its main goal is to hear cases concerning violations of the most serious crimes of concern to the international community as a whole.
The principle of complementarity could be described as providing “the key for unlocking the doors to the ICC”, because it establishes which cases will be admissible before the Court. The principle is one of the cornerstones of the ICC. It defines the relationship between the ICC and national courts. When national courts are unwilling or unable to genuinely carry out investigations and prosecutions of the most serious crimes of concern to the international community as a whole, the ICC will do it instead. Thus, the principle fills the gap.
The principle of complementarity governs the exercise of the Court’s jurisdiction. This distinguishes the Court in several significant ways from other known institutions. The Statute recognizes that States have the first responsibility and right to prosecute international crimes. The ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality are unwilling or unable to genuinely carry out proceedings. The principle of complementarity is based both on respect for the primary jurisdiction of States and on considerations of efficiency and effectiveness, since States will generally have the best access to evidence and witnesses and the resources to carry out proceedings. Moreover, there are limits on the number of prosecutions the ICC, a single institution, can feasibly conduct
Principle of Complementarity
The principle of complementarity is the compromise of the opinions of the negotiating States in the Preparatory Committees and during the Rome Conference. The principle defines the relationship between the ICC and national courts. When national courts are unwilling or unable to genuinely carry out investigations and prosecutions of the serious international crimes (genocide, war crimes and crimes against humanity), the ICC will do it instead.
Complementarity is a principle which represents the idea that states, rather than the International Criminal Court (ICC), will have priority in proceeding with cases within their jurisdiction. This principle means that the Court will complement, but not supersede, national jurisdiction. National courts will continue to have priority in investigating and prosecuting crimes committed within their jurisdictions, but the International Criminal Court will act when national courts are 'unable or unwilling' to perform their tasks
Both the Preamble and Article 1 of the Rome Statute note that the jurisdiction of the ICC “shall be complementary to national criminal jurisdictions.” National courts remain the primary venue for trying cases of mass atrocity. Only in particularly defined circumstances, enumerated in Article 17 of the Rome Statute, are cases admissible in the ICC.
At its inception, the idea of complementarity was meant to balance the competing interests of those who sought a court with universal jurisdiction and those who placed a priority on state sovereignty. A case is admissible in the ICC only when the state with original jurisdiction is “unwilling or unable genuinely to carry out the investigation or prosecution.” In all other cases, national courts are meant to retain jurisdiction, not to be superseded by the ICC.
The details of complementary jurisdiction are not explicitly described in the Rome Statute. Article 17 provides the framework for understanding complementarity, but lacks detail about use of the concept in practice. For the ICC to obtain jurisdiction, a state must be either unwilling or unable to genuinely investigate or prosecute. The Appeals Chamber has held that, when determining admissibility, the Court must first look to whether there are ongoing investigations or trials, or whether the state conducted such investigations in the past. Only if one or both of these things have occurred does the Court then look to questions of unwillingness or inability. If the state with jurisdiction over an alleged crime has not attempted to conduct an investigation or trial, the case is deemed admissible without consideration of willingness or ability.
Positive Complementarity
Positive complementarity is, generally, the idea that the Court, and particularly the OTP and Chief Prosecutor, should work to engage national jurisdictions in prosecutions, using various methods to encourage states to prosecute cases domestically whenever possible. The ultimate goal of such a policy is to strengthen domestic capacity, which arguably will have a significant positive impact on prevention of future atrocities.
Positive complementarity suggests that a more active and cooperative relationship between States Parties and the ICC is crucial to the Court’s success, particularly with respect to its long-term preventative impact.
Where traditional complementarity was meant to protect state sovereignty and was built on the idea that states would carry out national prosecutions as a result of the threat of international intervention by the ICC, positive complementarity envisions a more cooperative relationship between national jurisdictions and the Court.
The principle of complementarity defers to States the primary responsibility for investigating and prosecuting the crimes set out in article 5 in the Statute. The ICC is complementary or subsidiary to national courts, and it is only under certain circumstances that the ICC is entitled to take over cases. First of all, it is up to the national jurisdictions to certify that justice will be accomplished and if they fail the ICC will assert jurisdiction over the case. If States fulfil their obligations under international law by investigating and prosecuting every crime set out in the Rome Statute, then the ICC via the principle of complementarity, recognising the primacy of national jurisdictions, will not have any cases to deal with. Complementarity is addressed in the Preamble and Article 1, and in greater detail in Articles 12 through 15 and 17 through 18. It is also dealt with in Article 19 and Article 20 of the Statute.
Advantages of the Complementary Principle
Out of the many advantages of Complementary Principle, these are the major advantages of the same:
- It protects the accused if they have been prosecuted before national courts.
- It respects national sovereignty in the exercise of criminal jurisdiction.
- It might promote greater efficiency because the ICC cannot deal with all cases of serious crimes.
- It puts the onus on states to do their duty under international and national law to investigate and prosecute alleged serious crimes (that is, it is not just a matter of efficiency but a matter of law, policy, and morality).
The difference between the underlying primacy principle of the ad hoc tribunals and the complementarity principle of the ICC is reflected in the ne bis in idem principles. The ad hoc tribunals were designed to preempt national prosecutions under a primacy principle, giving the international courts control over where the accused were prosecuted. In contrast, the complementarity principle underlying the ICC's existence is expressly designed to give great control to states to proceed with prosecutions that would then preempt the jurisdiction of the ICC. Thus, the difference in language and underlying concept renders the statutes of the ad hoc tribunals and interpretations relevant to the interpretation of the ICC's ne bis in idem provision by further explaining the distinctions in terms.
Concept of Cooperation in the ICC
Two main challenges the ICC faces at this point are a lack of resources and a lack of credibility, both of which are concerns that may be overcome with the aid of outside institutions. Positive complementarity urges the ICC to act in concert with States Parties; in order to provide the necessary resources and support, the Court will need to work closely with international institutions and organizations as well as gain the cooperation of States Parties
Cooperation with other institutions will be crucial to the ICC’s success, particularly with respect to resource-intensive assistance to national judicial systems. By engaging States Parties through positive complementarity, the OTP may expect and encourage states to draw upon their own resources and those of supporting NGOs in the region in order to comply with international standards and OTP requests and suggestions. The support of NGOs and other institutions will not only provide additional resources, but may also lend much-needed credibility to the ICC’s and the OTP’s actions. It is from NGOs and States Parties that the Prosecutor will receive the support necessary to legitimate his actions and thus enhance the credibility of the Court.
The Rome Statute creates an elaborate cooperation regime to promote the effectiveness of the ICC. As a general obligation, the Rome Statute provides for states parties to ‘cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court’. The statute lists various forms of cooperation that a state is obliged to provide. These include the identification of individuals, the taking of evidence, the questioning of any person, service of documents, execution of searches and seizures, the freezing of assets and the catch-all phrase ‘any other type of assistance which is not prohibited by the law of the requested State’. But, without question, the most important form of cooperation provided for in the statute is the obligation to cooperate in the arrest and surrender of persons under an ICC arrest warrant. In addition to specifying the content of the obligations, the Rome Statute also lays down the various procedures that should be followed in carrying out the general duty to cooperate.
The importance of cooperation in the Rome Statute system is underlined annually by the states parties. The Assembly of States Parties has also developed a robust, although largely ineffective mechanism for countering non-cooperation. The importance of cooperation for the Rome Statute system is also reflected in the fact that all domestic legislation involving the Rome Statute includes a robust cooperation regime. The South African legislation, for example, includes elaborate provisions on cooperation with respect to arrest and surrender, and detailed provisions on other aspects of cooperation and assistance. This is also true of other domestic legislation implementing the Rome Statute, both in Africa and elsewhere.
The Rome Statute does not, however, include a horizontal obligation for states to cooperate with one another in the investigation of international crimes. The only provision for interstate cooperation relates to cases of competing requests, or, in other words, those cases where the ICC has made a request for cooperation from a state party and, at the same time, another state, whether a party to the statute or not, has made a similar request.
It is therefore not surprising that the states parties’ implementing legislation does not provide for interstate cooperation. Yet even national-level prosecution of international crimes benefits from interstate cooperation. This type of cooperation is particularly important in cases where the forum state – the state where the investigation and prosecution are taking place – is not the place where the crime occurred. In the context of the Rome Statute, which is based on complementarity and the notion of national systems exercising jurisdiction, interstate cooperation would greatly increase a state’s capacity to investigate international crimes and prosecute their perpetrators.
It is clear therefore that there is a legal gap with respect to interstate cooperation. Although it is based on the notion that domestic legal systems have the primary responsibility to exercise jurisdiction, the Rome Statute does not impose an obligation on states to cooperate with one another – even though interstate cooperation is necessary for effective national investigation and prosecution.
By working with states to strengthen their domestic institutions, the ICC can foster respect for the rule of law and governmental institutions, creating a more stable society which in turn would be less likely to fall into mass violence in the future. Through cooperation with other institutions and NGOs, the ICC may be able to provide the support necessary to states seeking assistance. While individual prosecutions are valuable in what they represent, and the model they set forth, the long-term impact of the ICC on prevention will likely be seen most clearly in its interaction with domestic jurisdictions.
Conclusion
The ICC exists as a model institution, upholding the ideal standards for prosecution of international crimes. The ICC will undoubtedly have an impact on changing norms and the way we think about international criminal law and accountability, simply as a result of its existence. However, to single-handedly spur a sea change in the way we react to and deal with atrocities would be nearly impossible. The ICC only has the capacity to provide the example, but the cooperation of other international institutions, NGOs, and most importantly States Parties to the Rome Statute, is essential to implementing this example more broadly. What the ICC can do is take a more active role in engaging these groups, in particular States Parties.
Complementarity, a concept that has evolved significantly since it was first introduced and ultimately included in the Rome Statute, presents a way by which the ICC can increase its potential positive impact on both domestic and international criminal justice and, in the long-term, prevention. By proactively engaging with and assisting domestic legal institutions, the ICC will be able to strengthen the rule of law in nations suffering from violent conflict and instability. Mass atrocities are committed when reality has been altered such that recognized moral imperatives and norms no longer bind members of a society. The altered reality of war and conflict creates an environment in which crimes such as genocide are more likely to be committed with impunity. A society that has, on the other hand, strong legal institutions and a strong sense of the rule of law, may be less likely to come to this brink.