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Positive Complementarityin the Rome System of Justice: 

Positive Complementarity in the Rome System of Justice William W. Burke-White, Assistant Professor of Law, University of Pennsylvania School of Law Presentation at TMC Asser Institute & The Grotius Centre for International Legal Studies, Leiden University 13 December 2006

Unrealistic Expectations of the ICC: 

Unrealistic Expectations of the ICC Rome Statute: “put an end to impunity” NGO coalitions: the need to generate support for the new Court Security Council: contribute to international peace and security Kofi Anan: “impunity has been dealt a decisive blow”

Unrealistic Expectations of the ICC: 

Unrealistic Expectations of the ICC Incapacitate international criminals Deter international crimes Restore communities Rebuild national judiciaries Provide recourse to victims and witnesses Expand body of jurisprudence Foster greater international cooperation Assist domestic peace processes Promote international peace and security Change domestic regimes

The Dangers of Burden Shifting: 

The Dangers of Burden Shifting Territorial states letting the ICC do their work Uganda? Third states failing to exercise universal jurisdiction or apply necessary political pressure Sudan? Security Council expecting contribution to international peace and security Sudan referral?

Resource Limitations and Capacity Constraints: 

Resource Limitations and Capacity Constraints Budget set by ASP Political support limited (and waning?) OTP: “aims at conducting 4-6 investigations between June 2006 and the end of 2009.” Chambers: 2 to 3 trials per year The problem of arrest and surrender: Lubanga, Kony and the Sudan

Misalignment of Expectations and Resources: 

Misalignment of Expectations and Resources Real danger of (perceived?) FAILURE The Court’s current resources and capacity can not meet expectations

Positive Complementarity as a Potential Solution: 

Positive Complementarity as a Potential Solution  Encourage and assist national prosecutions  Increase capacity by harnessing national jurisdictions  Rationalize expectations and shift burdens back to States

Slide8: 

“As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.” ICC Prosecutor, Luis Moreno Ocampo

Slide9: 

We will take “a positive approach to cooperation and the principle of complementarity. This means encouraging genuine national proceedings where possible, relying on national and international networks, and participating in a system of international cooperation.”

Complementarity: 

Complementarity A Principle of Admissibility “the Court shall determine that a case is inadmissible where: The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”

Complementarity: 

Complementarity General principle Primary national duty to prosecute international crimes, secondary possibility of prosecution by the Court Situational level Complementarity requires the OTP to undertake a general examination of whether cases the Prosecutor is likely to develop are being investigated or prosecuted by national authorities Case level OTP must determine whether national authorities have investigated or prosecuted the individual subject to potential prosecution by the Office for the same underlying factual events

Positive Complementarity in the Rome System of Justice: 

Positive Complementarity in the Rome System of Justice Complementarity as an allocation of authority Primary responsibility on States Shared competence and duties of national and supranational institutions

Legal Mandate: 

Legal Mandate Explicit Mandate: Not directly found in the Statute Implied Mandate: The “Rome System” Preamble: Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes Article 17 Article 53 Articles 86-93

A Policy of Positive Complementarity: 

A Policy of Positive Complementarity OTP should emphasize the duty of States to prosecute international crimes and welcome efforts by States to investigate and prosecute such crimes, noting that proceedings undertaken by States may be an effective and efficient means of ending impunity. OTP should encourage investigation and prosecution of international crimes within the Court’s jurisdiction by States where there is reason to believe that such States may be able to undertake genuine investigations and prosecutions. Realign expectations and resources

Expectations: 

Expectations Places responsibility back on States that have the primary legal obligations to act Alters global dialogue on accointability Catalyzes action by national judiciaries Affirms secondary role of ICC jurisdiction

Resources: 

Resources Maximizes impact of limited resources toward ending impunity Harnesses national judiciaries in pursuit of accountability Facilitates prosecutorial discretion with respect to limited number of situations and cases Strategies and tactics of Pos-Comp must be constrained by efficient use of available resources

The Logic of Positive Complementarity: 

The Logic of Positive Complementarity Domestic prosecutions impose financial and political costs International investigations and prosecutions impose a high sovereignty cost Positive complementarity leverages the high sovereignty costs of international intervention to offset financial and political costs of domestic action and thereby encourage domestic prosecutions

Practical Application: 

Practical Application Create incentives for States to undertake investigations and prosecutions themselves Promote the enhancement of States’ abilities to undertake genuine investigations and prosecutions Coordinate with States, where appropriate, in the investigation and prosecution of international crimes Utilize outreach programs to temper and shift expectations

Positive Complementarity and Unwilling States: 

Positive Complementarity and Unwilling States Goal: Ensure accountability by encouraging the State to act, such that it is no longer unwilling to prosecute, or by undertaking investigation by the Court Difficulties: Political or financial costs of prosecution may be extremely high ICC has only limited leverage points with States

Positive Complementarity and Unwilling States: 

Positive Complementarity and Unwilling States Tactics: Reminding States of their legal obligations to investigate, prosecute and/or arrest Developing a strong track-record of international investigations and prosecutions Alerting States to crimes within their jurisdictions Engaging in dialogue with unwilling States Shifting the global discourse back to the responsibility of States Monitoring on-going domestic proceedings to ensure genuineness

Positive Complementarity and Unable States: 

Positive Complementarity and Unable States Goal: Enhance the ability of the State to investigate and prosecute international crimes where cost-effective and genuine prosecutions are likely to follow. Difficulties: Poor track-record of international tribunals enhancing domestic judicial capacity Potential legal implications for admissibility Efficient resource use?

Positive Complementarity and Unable States: 

Positive Complementarity and Unable States Tactics: Sharing legal resources, analysis, and information Exchanging expertise and skills Publication of clear standards and best practices Mobilizing external resource networks Developing exit strategies to promote judicial reform Providing specific but limited technical assistance BUT, must balance resource expenditures with potential benefits….

Positive Complementarity and the Division of Labor: 

Positive Complementarity and the Division of Labor Goal: Share prosecutorial duties with States where States are unable to prosecute some crimes within their jurisdictions, but able to prosecute others Difficulties: “Free rider” States Appearance of impropriety/bias Consequences for admissibility challenges Conflicts and lack of coordination

Positive Complementarity and the Division of Labor: 

Positive Complementarity and the Division of Labor Tactics: Avoiding the free-rider scenario through careful “willingness” evaluations Dividing labor with States with clean hands and genuine intent Maintaining a non-biased, independent stance vis-à-vis cooperating States Carefully coordinating through on-going dialogue with States Using timing and sequencing strategically to avoid potential conflicts Sharing resources and investigative files, where appropriate Considering a division of labor with 3rd States

Positive Complementarity and Public Outreach: 

Positive Complementarity and Public Outreach Publicly emphasize State obligations to investigate, prosecute, and arrest Utilize bilateral and multilateral relationships to pressure national governments to act Mobilize networks to generate political pressure and material support Temper and shift expectations

Positive Complementarity in Practice: 

Positive Complementarity in Practice DR Congo ICC investigation and arrest of Thomas Lubanga 2006 War Crimes convictions by Congolese Military Courts Direct Application of Rome Statute by Congolese Courts

Positive Complementarity in Pracitice: 

Positive Complementarity in Pracitice Sudan Security Council Referral to ICC Prosecutor Investigation by ICC Sudan establishes Darfur Special Court and associated institutions Limited domestic trials “Shielding” attempt? Darfur Special Court

Positive Complementarity in Practice: 

Positive Complementarity in Practice Colombia Peace and Justice Law (June 2005) Letter from OTP draws attention to potential crimes in jurisdiction Colombian Constitutional Court modifies the law Colombian officials attribute reaction to ICC Colombia Farc Rebels

Positive Complementarity in Practice: 

Positive Complementarity in Practice Netherlands ICC Prosecutor draws attention to financial aspects of war crimes (2004) Netherlands opens investigation of Gus van Kouwenhoven for war crimes and arms smuggling to Liberia van Kouwenhoven convicted in 2005 ICC acknowledged as prompting Dutch investigation Gus van Kouwenhoven

As a result of a carefully tailored strategy of Positive Complementarity…: 

As a result of a carefully tailored strategy of Positive Complementarity… Broader accountability can be assured through the activation of national judiciaries ICC resources can be focused where they are most needed The impunity gap can be narrowed Expectations can be realigned with available resources and capacity

Discussion: 

Discussion