The ICC and Complementarity: A Tale of false promises and Mixed up Chameleons

As the Assembly of States Parties (ASP) meets in New York for its the 13^th annual meeting, it will most likely produce yet another resolution on complementarity. Indeed, one of the biggest selling points of the International Criminal Court (ICC) by some of its supporters and States has been the principle of complementarity. This principle, mentioned in both the preamble of the Rome Statute and its very first article is considered to be a recognition of two fundamental concepts: 1) that of the sovereignty of states in the exercise of criminal prosecution and 2) that of the primary obligations of states to prosecute international crimes, as recalled in the preamble of the Rome Statute. Put simply, complementarity is considered to make the ICC a court of “last resort” and the first Prosecutor famously claimed in that respect that the major of success of the institution would be not to have any cases at all.

But whatever new resolution is enthusiastically adopted at the ASP meeting, it is most likely to not address the actual difficulties faced by the judges in the daily legal operation of the principle as written down in the Statute. As the most recent report of the Bureau on complementarity shows, it’s all about strengthening domestic capacity for the prosecution of international crimes and improving cooperation. In other words, it is all about what people have called “positive complementarity”. It is as if the ASP has forgotten that before being a lofty policy objective, complementarity is a legal principle with a particular scope that needs to be applied specifically in the context of admissibility evaluations.

It is this core principle of complementarity, as present in the case law that I will discuss in this short note, more particularly how its interpretation can contribute to the claimed objectives of the ICC to contribute to the broader framework of promoting ownership of accountability mechanisms in post conflict societies. More particularly, I want to unpack the false promises of complementarity in its practice, with some suggestions on how to improve the system.

First of all, it is important to recall from the outset that complementarity, according to the Rome Statute, is only in relation to domestic criminal jurisdictions. This has led to some debate as to whether this might leave some room for national accountability mechanisms that might fall short of criminal proceedings (TRCs, amnesties, traditional mechanisms…). While there is always room for interpretation in that respect, it seems obvious that complementarity does not allow as much flexibility for local solutions in a post conflict settings as some would like to think. As I’ve argued elsewhere, I believe there is in fact little room for considering alternative mechanisms within a strict construction of the complementarity principle. But as I’ve also argued, this is not so big a problem as may seem from a transitional justice perspective. Indeed, one should remember that the ICC does not pass judgment on the legality of local justice mechanisms generally, it just evaluates whether a particular mechanism can be an obstacle to the exercise of jurisdiction in a particular case. This means that the local mechanism remains operational for all other cases, whatever the ICC decides.

Second of all, when one looks generally at the practice of complementarity at the ICC, it should be noted that the legal framework on complementarity is certainly not an example of simplicity, which cannot be conducive to a pedagogic effect of the provision on States. Indeed, while it is not possible to go into detail here, it seems that one needs a double degree in linguistics and quantum physics to understand the various ways the different components of complementarity are to be understood at various stages in the process (from the preliminary examination phase, to the case phase). One problem in that respect is that complementarity is being applied by two organs of the Court, Chambers and the OTP, with no judicial control of the latter’s assessment of complementarity at the preliminary examination phase. Moreover, the situation is not helped by the Appeals Chamber’s passive, or sometimes unhelpful contributions along the way. For example, an Appeals Chamber in the Kenya cases seemed to think that it was helpful to “clarify” that the “conduct” limb of the complementarity test should be understood as “substantially the same conduct”. Needless to say that this does not take us very far in our understanding of complementarity. Until the Appeals Chamber does its job in harmonising the current practice of the Court, we will not have clarity on the issue.

Going into more detail into the way complementarity is applied, it should be noted that Chambers have not always adopted interpretations of the legal framework that is conducive to finding a balance between respect for local institutions and compelling them to proceed in the prosecution of international crimes.

In terms of respect for local prosecutions, the chambers have adopted a fairly restrictive “same person, same conduct” test in order to determine what constitutes the same case for the purposes of article 17. To be honest, it is not entirely clear from the case law what this means exactly, even after the clarifications in the Libya decisions, but the Lubanga case shows the limits of the approach. Indeed, he was under investigation for serious crimes domestically (murder, torture…), but the case was still deemed to be admissible because it was not the specific conduct that was being investigated by the ICC OTP. This does not leave much room for domestic prosecutorial discretion in achieving the goal of the Rome Statute of ending impunity for international crimes. This case is additionally somewhat ironic given the hard time given to the ICC Prosecutor himself for not ultimately charging sexual violence… this proves that finding the right balance in prosecutorial discretion is a difficult exercise.

Along the same lines, the Pre-Trial Chamber in the Kenya situation was not very patient with the country in allowing it to implement accountability mechanisms for post electoral violence. Possibly, especially in hindsight, there might have been some good reasons not to trust Kenya. But, on principle, especially when you see the time it takes for the ICC to investigate and prosecute a handful of cases (which makes it difficult for the Court to be credible when it judges domestic judicial efforts), a more realistic timeframe could be envisioned before the ICC stepping in. Going further, this might sound naïve (the beauty of counter-factuals are that they are impossible to prove…), but maybe the ICC wanting to move faster in that situation crystallized opposition to the Court domestically, leading to the election of an indictee to the presidency on the wave of anti-ICC political manifesto and to the lack of cooperation that ultimately contributed to the case against Kenyatta collapsing…

Another possible problem is the gap between the broad complementarity assessment done by the OTP at the preliminary examination phase (see Colombia) and the rather strict approach advocated by the OTP (and mostly followed by the Chambers) at the case phase. This leads to the weird situation that a number of specific cases in certain situations deemed to not meet the admissibility threshold generally (in Colombia for example) would undoubtedly be admissible because no specific proceedings have been instituted against particular individuals, while in other situations (like Côte d’Ivoire) cases are proceeding as admissible, despite the fact that the number of ongoing domestic prosecutions would arguably render the situation inadmissible as a whole if an authorisation to open an investigation were to be requested.

There is no ideal way to balance things out. One possible solution that could be considered is the one proposed by the Gbagbo defense team in February 2013 and actually applied to a large extent in the Senussi admissibility decision in October 2013, which argued that the “conduct” to be considered should be that relating the collective dimension of the crimes. This would particularly work in the case of the prosecution of leaders for their general role in the commission of the crime. For example, in the Gbagbo case, the case would be inadmissible if domestic proceedings related to his alleged role in the post-electoral violence generally, as defined in the “common plan” put forward by the Prosecutor in his Document Containing the Charges. This avoids casuistic discussions on whether specific acts or incidents are included in the two proceedings.

On the other end of the spectrum, there might sometimes be too much deference to States in the definition of the principle of complementarity. More particularly, I believe that the ICC probably too easily accept the inactivity of states as being acceptable, especially if the idea is to responsibilise states in terms of their primary international duty to prosecute international crimes. To be clear, I agree that legally speaking, this is perfectly in line with the language of the Rome Statute and in this sense I am in agreement with Darryl Robinson’s reading of Article 17: inactivity simply makes a situation/case admissible. But that does not mean that the judges need to present this inactivity in a positive way or refuse to note the cynical use of the Court by States.

Unfortunately, this is what is happening now. Indeed, the Pre-Trial Chamber in the Gbagbo case confirmed last year a finding of the Katanga Trial Chamber that a State, by staying inactive and letting the ICC take over, would in fact be complying with its duty to prosecute international crimes. In other words, States are encouraged to outsource their international legal obligations to the ICC. This is hardly a good message to send if the end goal is to promote domestic capacity building. In the same vein, the way the ICC accepted jurisdiction in the Gbagbo case vindicated the cynicism of the Côte d’Ivoire authorities. Indeed, there is ample publicly available evidence (as documented here and here) that the authorities held Gbagbo in detention from April 2011 until November 2011 just for the purposes of making him available to the ICC Prosecutor and that in addition domestic prosecutions were specifically tailored to exclude crimes within the jurisdiction of the ICC to avoid any risk of the case being considered inadmissible. Again, this is perfectly in line with a technical reading of the Rome Statute, but this conveys the wrong idea to states that the ICC is a court of convenience (rather than a court of last resort) that can be manipulated into taking cases without any risk of even the slightest slap on the wrist.

Finally, two additional points need to be mentioned in relation to complementarity: the question of domestic implementation of the Rome Statute and the question of domestic due process.

In relation to the domestic implementation of the Rome Statute, it is often argued that this is one of the goals of complementarity. Several remarks need to be made in that respect. First of all, technically, the Rome Statute does not create a direct obligation to for States to prosecute crimes within its jurisdiction. Complementarity only says that if the States do not do it, the ICC will. Second of all, it appears from the case law (see Senussi admissibility decision) that in the admissibility assessment, the specific legal qualification is not determinative for declaring the case admissible or not. It would therefore appear that if compelling States to implement the Rome Statute is to be an objective of complementarity, some changes are need in that respect.

In relation to due process at the domestic level, there is some debate whether, for the case to be inadmissible, the accused should be guaranteed a fair trial at before national courts. This debate revolves around the scope to be given to the expression “having regard to the principles of due process recognized by international law” contained in the chapeau of Article 17(2) of the Rome Statute. While this could be read as important guarantees of due process into the admissibility assessment, this is not in line with the spirit of Article 17 (which focuses more on the fact that the person is actually being tried) and the nature of the ICC (which is not a human rights court). Notably, the Senussi decision adopted a minimalist approach to this issue. It would therefore appear, here again, that if domestic due process is to be part and parcel of the complementarity test, some more explicit language to that effect would need to be included in the Statute (whether this would be a good idea is a different issue).

In conclusion, it appears obvious that we have oversold the principle of complementarity as it is both enshrined in the Statute and implemented by the Court, as a cornerstone of the whole ICC system. Ultimately, it is a mere technical procedural step that may or may not be assessed by Chambers, depending on whether a challenge is brought for example under Article 19. In this sense, it is difficult to escape the conclusion that, to date, complementarity has been the object of a number of false promises.

This being said, it does not mean that the legal framework cannot be improved to some extent to be able to more adequately meet some of the broader goals attributed to the ICC in its relation to domestic prosecutions of international crimes. And, to return to the ASP, this responsibility ultimately lies with the States and drafters of the Rome Statute, who are responsible for this mess of a legal framework. Rather than invent new policies, such as positive complementarity, which allows for nice and empty speeches on the need for the promotion of the rule of law, they should get to work and do their (boring) job of making the Rome Statute more than a patchy political compromise, but an actual effective legal tool to achieve their claimed goals.

Of course, when I say this, I take on face value these wider objectives attached to the ICC. But these can also be questioned. It is one thing to say that the ICC can, on a systemic level, contribute to broader domestic ownership of accountability mechanisms and norm internalization, it is another entirely to actively try to achieve that on a daily basis through what is essentially a criminal court. I recently compared the ICC to the frog who wanted to be an ox in Oesop’s fable, which eventually blew up because of its exaggerated ambition. I’m wondering if an equally apt comparison is that of the mixed up chameleon in the children’s book by that name, where a chameleon, aspiring to be more that what he is, successively acquires the attribute of whatever animal he thinks is better than him (the trunk of an elephant, the neck of a giraffe, the tail of a fox, the shell of a turtle…) until he ends up looking like this:

Ultimately, the chameleon looks like nothing recognisable, a cumbersome puzzle of a being incapable of doing anything, who soon realises that he is hungry and that he cannot, in that state, do the simplest of tasks for a chameleon, catch a fly…

Isn’t the ICC, which is trying to be a truth commission for broken societies, a cathartic tool for promoting reconciliation, a civil court for victims, a human rights judge of domestic due process, an reparations fund for affected communities, a monitoring body for national capacity building, an advisory service for domestic prosecutions and more generally the self-appointed spokesperson for putting an end to impunity in the word, at risk of ending up in the same situation as the poor chameleon of the story? Let’s hope not…

Photo: Secretary-General Ban Ki-moon (centre) meets with Luis Moreno-Ocampo (left), outgoing Prosecutor of the International Criminal Court (ICC), and new ICC Prosecutor Fatou Bensouda, 05 June 2012 (UN Photo/Eskinder Debebe)