A Hindrance to Global Justice: An Evaluation on the Effectiveness of the ICC’s Complementarity Principle
On July 1st, 2001, the international community took a huge step forward in the pursuit of global justice with the creation of the International Criminal Court (ICC). The court was established with the noble intention of prosecuting the most serious crimes of international concern, such as genocide, war crimes, and crimes against humanity. It was the start of the “end [of] impunity for the perpetrators of the most serious crimes of concern to the international community.” [1] Or was it?
Established through the Rome Statute, Article 17 holds that at the heart of the body's operational framework lies the principle of complementarity, dictating that “it can prosecute cases only if national justice systems do not carry out proceedings or when they claim to do so but in reality are unwilling or unable to carry out such proceedings.” [2] This principle was designed on the grounds of respecting state sovereignty and promoting domestic judicial systems while balancing the need for international accountability. However, after almost 25 years with the court in existence, there is growing evidence that this principle, while well-intentioned, is doing more harm than good by restricting the reach and effectiveness of global justice.
One primary way that complementarity hinders global justice is by allowing states to shield perpetrators through the facade of national proceedings. In order for the ICC to get involved, a country must be failing to investigate or try a case. However, countries can bypass this by initiating superficial investigations or prosecutions that put on the front that they are addressing the crimes in question. This prevents ICC intervention while protecting the perpetrator, as under the Rome Statute it would be illegal for the ICC to get involved.
To emphasize the manner in which this happens, I point to the case of Kenya following the post-election violence of 2007-2008. This erupted after a disputed presidential election, in which both sides accused each other of electoral fraud. This led to widespread protests and violence where 1,133 people died and 350,000 were displaced from their homes. [3] The ICC began to investigate this situation, to which the Kenyan government responded by initiating domestic proceedings against the accused officials. In doing so, they eliminated any ICC investigations. However, the Kenyan proceedings were widely criticized as inadequate and just for show to remove the ICC from the equation rather than to deliver justice. Muthoni Wanyeki, a Kenyan human rights lawyer, observed this occurrence and commented that “[t]he government's actions were a cynical manipulation of the complementarity principle, leaving victims without recourse to either meaningful domestic justice or international intervention." [4] Ultimately, the complementary principle has served as a shield for countries against ICC intervention where they can present a facade of justice but not truly deliver it.
Furthermore, the complementarity principle often leads to significant delays in the pursuit of justice. Article 18 of the Rome Statute requires the ICC to notify all state parties and states with jurisdiction over a particular crime of its intention to investigate. [5] This procedure combined with the requirement that the ICC must wait for domestic proceedings to play out or for very clear evidence of state unwillingness or inability to prosecute before it can step in. This process can take years, during which evidence may be lost, witnesses may disappear, and victims may lose hope. A case illustrating this disappointing problem is that of Sudan’s former President Omar al-Bashir. Despite an ICC arrest warrant issued in 2009 for genocide, war crimes, and crimes against humanity in Darfur, al-Bashir remained free for a decade, protected by claims of domestic accountability measures that never materialized. [6] This delay and failure to deliver justice was a result of the legal caveats set forth in Articles 17 & 18 of the Rome Statute.
Furthermore, in the Democratic Republic of Congo (DRC), ICC investigations into crimes committed in the Ituri conflict were delayed for years as the Court assessed domestic judicial capacity. By the time the ICC was finally able to act, crucial evidence had been lost, and many victims had given up on seeing justice served. Phil Clark, a professor of international politics, argues that "the ICC's cautious approach in the DRC, driven by complementarity concerns, ultimately undermined its ability to effectively prosecute cases and deliver justice to victims." [7] If it weren’t for the complementarity principle, the ICC would have been able to address the conflict earlier while it was still fresh and truly served the justice that victims deserved.
The consequences of such delays on the delivery of justice are profound. As time passes, the quality and availability of evidence deteriorate, making it increasingly difficult to build a strong case. Witnesses may become unavailable or change their testimonies due to fear or external pressures, including from their own government as well. Most importantly, victims and affected communities may lose faith in the justice system, feeling that their suffering has been forgotten or deemed unimportant. This erosion of trust and evidence severely undermines the ICC's ability to fulfill its mandate of ending impunity and delivering justice to those who have suffered the most heinous crimes.
Another key issue of the complementarity principle is that the ICC is reliant on obtaining evidence from the countries involved in the trial. With this, the ICC can be prevented from getting the information they need if the country chooses not to comply. There was an open case against Kenya’s president that was dropped in December 2014 because the Kenyan government refused to provide the ICC with vital evidence and intimidated witnesses who ended up refusing to participate or changing their testimonies. In another instance, the first prosecutor of the ICC, Luis Manuel Ocampo, said that they tried to prosecute in Afghanistan, but the government didn't provide them with proper evidence to build a murder case. [8] If the ICC is trying cases in which the evidence can be tampered with or hidden by governments who already, in the first place, didn't want to or couldn’t prosecute, how is anyone expecting true justice to be served?
Lastly, complementarity can lead to inconsistent application of justice across different countries and cases. Article 17(2) of the Rome Statute provides the criteria for determining unwillingness or inability to prosecute, but these criteria are subject to interpretation, leaving a lot of room for gray area. [9] States with more robust legal systems or greater political influence may be more effective in claiming competence to handle cases domestically, even when their proceedings are flawed. This creates a two-tiered system of justice where some perpetrators face international prosecution while others benefit from potentially biased domestic processes.
The stark contrast between the ICC's interventions in African countries versus its limited action in other regions has fueled criticisms of selectivity and bias. As Charles Chernor Jalloh, a professor of international law, points out, "The perception of Africa as the ICC's exclusive focus, partly due to the complementarity principle, has eroded the Court's legitimacy and effectiveness in promoting global justice." [10] The ICC tends to investigate Africa more because those are the countries seen to have less political influence or developed legal systems. This makes it more legally viable for the ICC to intervene than it can for countries that are international powerhouses. The principle of complementarity was intended to promote universal justice by encouraging all states to strengthen their domestic judicial systems. However, when it appears to be applied selectively because the ICC struggles to intervene when necessary in some states, it instead reinforces the perception that international criminal justice is not truly universal.
Evidently, the complementarity principle brings in numerous faults to the effectiveness of the ICC and international law. In writing this piece, I am not attempting to claim that the principle of complementary justice is not important or vital. However, I am claiming that it does less for justice than more. Regardless of this, the sovereignty of the states is something that should always be prioritized and the complementarity principle should remain.
However, addressing the shortcomings of complementarity requires a multifaceted approach. One potential solution is to refine the principle to include more stringent criteria for assessing the genuineness of national proceedings. This could involve setting specific benchmarks for domestic investigations and prosecutions and allowing for more robust ICC oversight. [11]
Another approach could be to strengthen the ICC's ability to provide technical assistance and support to national judiciaries, helping them build the capacity to genuinely handle international crimes. [12] This would align with the original intent of complementarity while addressing some of its current shortcomings.
Additionally, the international community could work towards establishing a more standardized approach to complementarity across different countries and situations. This could help address the inconsistency and perceived bias in the application of international criminal justice.
While the principle of complementarity was conceived with good intentions, its practical application has often hindered rather than helped the cause of global justice. By allowing states to shield perpetrators, causing significant delays, and creating inconsistencies in the application of justice, complementarity has become a barrier to the ICC's effectiveness.
As we move forward, it is crucial to reassess and refine this principle, ensuring that it serves its original purpose of promoting justice rather than impeding it. This may require a fundamental rethinking of the relationship between national and international justice mechanisms and a more nuanced approach to balancing sovereignty concerns with the need for accountability. Only by addressing these challenges can we hope to create a truly effective system of international criminal justice that serves victims and holds perpetrators accountable.
Bibliography
[1] ICC. The ICC at a Glance. https://www.icc-cpi.int/sites/default/files/ICCAtAGlanceEng.pdf
[2] ICC. The ICC at a Glance
[3] “Background on the Post-Election Crisis in Kenya | Smart Global Health | CSIS,” https://www.csis.org/blogs/smart-global-health/background-post-election-crisis-kenya.
[4] Wanyeki, L. Muthoni. "The International Criminal Court's cases in Kenya: origin and impact." Institute for Security Studies Papers 2012, no. 237 (2012): 1-16.
[5] “Rome Statute of the International Criminal Court,” OHCHR, https://www.ohchr.org/en/instruments-mechanisms/instruments/rome-statute-international-criminal-court.
[6] Keppler, Elise. "Sudan: A Chance for Justice." Human Rights Watch, April 11, 2019. https://www.hrw.org/news/2019/04/11/sudan-chance-justice.
[7] Clark, Phil. Distant Justice: The Impact of the International Criminal Court on African Politics. Cambridge: Cambridge University Press, 2018.
[8] This is from a discussion in class
[9] “Rome Statute of the International Criminal Court,” OHCHR
[10] Jalloh, Charles Chernor. The International Criminal Court and Africa. Oxford: Oxford University Press, 2017.
[11] Burke-White, William W. "Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice." Harvard International Law Journal 49, no. 1 (2008): 53-108.
[12] Stahn, Carsten. A Critical Introduction to International Criminal Law. Cambridge: Cambridge University Press, 2018.