Day 4: Complementarity and Cooperation

The stocktaking sessions continue today, with various formal panels and side-events on complementarity and cooperation.

The morning plenary session addressed complementarity, which frames the relationship between the ICC and national jurisdictions and when a particular case may be admissible before the Court. The Rome Statute establishes that the ICC is complementary, rather than superior, to state legal processes; this diverges from the practice of the ad hoc tribunals for the Former Yugoslavia and Rwanda, in which the international court took prominence over national courts. In short, the Rome Statute–as per Article 17–states that the Court shall defer to national processes “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”. What this means in practice has been the subject of an extensive debate among scholars and practitioners, and this process has continued here at the Review Conference. There are at least two core issues bound-up in this discussion: how does a state demonstrate its ability and willingness; and relatedly, who makes the final determination in assessing admissibility?

In recent years, “positive” (or “proactive”) complementarity has become the watchword of this process. Positive complementarity is typically defined as cooperative efforts between states, or between states and international organizations and/or the ICC, in improving national capacities to investigate and prosecute alleged Rome Statute crimes in their own jurisdictions. This can take the form of legal and judicial training, financial assistance and other forms of capacity-building. The Court and the broader international community can thus have a proactive role in contributing to the improvement of state capabilities and thereby the ability of states to address grave crimes themselves. This is essential to the proper functioning of the Rome regime, since the Court will only ever be able to conduct a very few trials at any one time. Positive complementarity, it was repeatedly asserted, can help to close the impunity gap so that no serious international crimes go unpunished.

Panelists in the morning stocktaking exercise addressed various aspects of this issue. Most interesting to my mind were the comments from Justice Dan Akiiki of the War Crimes Division of the Ugandan High Court as well as a judge from the military court of the Democratic Republic of the Congo. I will not attempt to reproduce their comments in detail here, though both noted their successes in addressing Rome Statute crimes. Justice Akiiki asserted that Uganda was capable of trying all alleged cases of genocide, crimes against humanity and war crimes occurring on their territory. The DRC representative, in turn, argued that his country was a “model of cooperation” with the Court. Without going into detail here, it is safe to say that many observers, while applauding improvements, would challenge these glowing assessments. Later this evening, the United States will host a further discussion of complementarity in the case of the DRC — offering another opportunity for exploring the prospects and challenges of positive complementarity.

For now, though, attention turns to cooperation, as the plenary session on this topic is now underway.