The International Criminal Court and Positive Complementarity. ASP Institutional Framework

Table of Contents

PART I – INTRODUCTION AND OVERVIEW
1 Introduction

PART II – THE CONCEPT OF POSITIVE COMPLEMENTARITY
1 Background
2 The definition of positive complementarity: A normative challenge
3 Legal foundations of positive complementarity
4 2010 Kampala Review Conference on Stocktaking of the Rome Statute
5 The Greentree process

PART III – INSTITUTIONAL FRAMEWORK
1 The Secretariat of the ASP and positive complementarity
2 Why a new legal and institutional regime?

PART IV – CONCLUSION AND RECOMMENDATIONS
1 Conclusions
2 Recommendations

Abstract

The literature of the law has been slow to develop and present the evolving themes of positive complementarity. This paper seeks to establish how the legal and institutional framework for positive complementarity may be effectively implemented. It is argued that the existing legal and institutional framework in respect of the effective combatting of impunity is largely unsatisfactory.

The paper traces the evolution and development of the concept of positive complementarity, examining its characteristic features and attributes, and the possibilities and opportunities the concept presents for the effective combatting of impunity. It examines the various scholarly arguments advanced to explain the concept of positive complementarity, and analyses the attendant normative challenges and limitations. It is noted that there is no fixed and universally acceptable definition of positive complementarity. It is argued that there is a need for the establishment of a coherent legal and institutional framework for positive complementarity.

In this light, appropriate policy alternatives and considerations both domestically and internationally, are considered. On the international level limitations characterising the current institutional framework of the Secretariat of the Assembly of States Parties (ASP Secretariat) are identified. It is argued that a fundamental restructuring of the ASP Secretariat is essential, and measures to restructure the ASP Secretariat in order to reinforce its effectiveness in fulfilling its mandate on positive complementarity are identified. At the domestic level, the various aspects of implementing legislation are discussed.

In conclusion, the establishment of an independent office to address positive complementarity and revitalise the institutional framework within the legal structures of the ASP Secretariat, is examined. The paper recommends far reaching changes in the institutional framework for the ASP Secretariat, which, if implemented, would effectively support the national jurisdictions of state parties in their implementation of the concept of positive complementarity. It provides a template that provokes thought and inspires further discourse - thus stimulates the intellectual desire and impetus for further research in this realm. This represents an unequivocally original contribution by this study to knowledge and research.

List of Key Terms

complementarity – international criminal law – institutional – international – law – legal – positive complementarity – impunity – international criminal court – ASP –Assembly of State Parties

PART I – INTRODUCTION AND OVERVIEW

1 Introduction

The Rome Statute of the International Criminal Court (the Rome Statute)^[1] provides that Court shall be complementary to the national criminal jurisdictions.^[2] Positive complementarity, as such, is not provided for in the text of the Rome Statute. Other than the references to the term ‘complementary’ in the Preamble and in article 1 of the Rome Statute, there is no definition, or even a mention, of the term in any other of the Statute’s provisions.

The purpose of this paper is two-fold. Firstly, it interrogates the definition, scope, and nature of positive complementarity. Secondly, it analyses the legal and institutional framework of the Assembly of State Parties’ for the implementation of positive complementarity.^[3] In essence, the paper assesses the opportunities presented, the benefits generated, and the challenges raised by the concept of positive complementarity.

The literature of the international law has been slow to develop and interpret the various themes that have evolved regarding positive complementarity. Consequently, there is a glaring dearth of literature on legal and institutional framework for the concept of positive complementarity. Besides, the jurisprudence of the ICC has to date offered little in the way of exposition of the concept.^[4]

The principal tenets – most notably the definition, the constitutive elements, and the scope – of the concept of positive complementarity, remain largely unclear. Differently phrased: the parameters of application and the formal justification for positive complementarity, have remained unclear, thereby rendering the concept susceptible to varied interpretations. The lacuna created by the absence of a concrete definition of the term in the Rome Statute generates an agenda for debate in this paper. This paper is thus conceived as my modest contribution to address this lacuna.

PART II – THE CONCEPT OF POSITIVE COMPLEMENTARITY

1 Background

From a functional point of view, teething constraints in the investigations, situations, and cases characterised the operations of the ICC.^[5] The Court is limited as regards the number of prosecutions it can practically and feasibly handle.^[6] This has led the OTP to re-evaluate its strategies and focus largely on the so-called high-ranking offenders while leaving the many lower-ranking offenders to be dealt with by national courts.^[7] Consequently, the OTP adopted what it termed ‘a positive approach to complementarity.’^[8]

The OTP’s 2003 Paper on Some Policy Issues articulated an approach to complementarity that led to the emergence of an idea of positive complementarity.^[9] The Policy Paper recognises that national investigations and prosecutions, where they can properly be undertaken, will normally be the most effective and efficient means of bringing offenders to justice.^[10] The ICC Prosecutor recognised this by stating that … the effectiveness of the International Criminal Court should not be measured only by the number of cases that reach the Court. On the contrary, the absence of trials by the International Criminal Court, as a consequence of the regular functioning of national systems, would be a major success.^[11]

This was reinforced by the 2006-2009 Prosecutorial Strategy Paper which announced “A positive approach to complementarity”^[12] whereby the OTP “encourages genuine national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation.”^[13]

Subsequently, the OTP’s Prosecutorial Strategy Policy Paper 2009-2012 identifed positive complementarity by stating that:

[T]his principle of complementarity has two dimensions: (I) the admissibility test, i.e. how to assess the exercise of national proceedings and their genuineness, which is a judicial issue; and (ii) the positive complementarity concept, i.e. a proactive policy of cooperation aimed at promoting national proceedings.^[14]

In conclusion, from the reports, a positive approach to complementarity means that the OTP will encourage genuine national proceedings where possible, relying on its various networks of cooperation, but without involving the Office directly in capacity building or financial or technical assistance.^[15]

2 The definition of positive complementarity: A normative challenge

The normative character of positive complementarity remains elusive.^[16] The concept of positive complementarity is the idea that the ICC and, notably, the prosecutor and the OTP, should work to engage national criminal courts in prosecutions, using various methods to encourage states to prosecute international criminal cases domestically whenever possible.^[17]

Stahn states that complementarity has been claimed to have many faces and has raised a paradox.^[18] It has traditionally been theorised on the basis of a distinction between ‘classical’ and ‘positive’ complementarity.^[19] The normative question posed is: To what extent does the classification of complementarity as ‘classical’ or ‘positive’ define the normative characterisation of positive complementarity? It is submitted this classification will ultimately derive its validity from the interpretation of the relevant provisions of the Rome Statute.^[20] The term ‘classical’, for instance, does not say much beyond describing that it was the original concept before the emergence of another model of complementarity, namely, positive complementarity.^[21]

Burke-White,^[22] for his part, argues that ‘pro-active’ complementarity is not expressly regulated but is embedded in the structure of complementarity in the Rome Statute.^[23] It is submitted that Burke-White’s attempt to develop a normative justification for pro-active complementarity^[24] is a semantic reflection of the OTP’s vision of positive complementarity.^[25]

Nouwen takes a different approach to the plausibility of positive complementarity.^[26] She argues that complementarity has been living a double life: on the one hand, from a legal point of view it is a technical admissibility rule provided for in the Rome Statute and governing how the ICC may proceed with the investigation or prosecution of a case within its jurisdiction;^[27] on the other hand, complementarity presents as a ‘big idea’ resulting from the work of writers, diplomats, activists, and legal practitioners.^[28] She contends that the advocates for complementarity as ‘a big idea’ seek to promote a normative agenda beyond the confines of the Rome Statute.^[29] The normative difficulty introduced by the foregoing frame of argument is that in the absence of specific references outside the Statute Nouwen’s argument collapses.

In conclusion, there is no settled definition from the exiting literature analysed.

3 Legal foundations of positive complementarity

Positive complementarity has not yet received juridical endorsement from the ICC judges by way of jurisprudence. This continues to make the exact normative value and application of the concept uncertain.

Interestingly, in the case of Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi ^[30] the Libyan government’s legal team argued that:

... Libya invites the Court to embrace the concept of positive complementarity in a manner which gives full effect to the object and purpose of the Statute and the spirit of complementarity by allowing the Libyan Government time to complete its domestic proceedings relating to Abdullah Al-Senussi subject to monitoring and the acceptance of assistance or fulfilment of other express initiatives and obligations.^[31]

The submission continued

…this case provides a unique opportunity to embrace the concept of positive complementarity in a manner which gives full effect to the object and purpose of the Statute and the spirit of complementarity by allowing the Libyan Government time to complete its domestic proceedings relating to Abdullah Al-Senussi subject to monitoring and the acceptance of assistance or the fulfilment of other express initiatives and obligations.^[32]

Further submission by the Libyan-government team underscored that:

There is no explicit reference to this concept [of positive complementarity] in the Statute, nor was it canvassed during the negotiations on complementarity, which instead focussed on developing acceptable ways to regulate jurisdictional disputes between the International Criminal Court and active national jurisdictions.^[33]

The submission continued that:

However, the Statute foreshadows the formal implementation of positive complementarity initiatives by reason of its powers to regulate the admissibility proceedings as it deems appropriate pursuant to rule 58(2), providing that this does not occasion ‘undue delay’.^[34]

In rendering its judgement, the Pre-Trial Chamber I did not cite positive complementarity as a ground for its decision. In consequence, there is virtually no ICC jurisprudence on positive complementarity.

It is argued that certain core legal features can be ascribed to the concept of positive complementarity and are rooted partly in the provisions of the Rome Statute.^[35] It has also been argued that the concept of positive complementarity is largely the result of a liberal interpretation of the Statute by the ICC prosecutor.^[36]

Nothing in the Rome Statute expressly regulates positive complementarity, but articles 17, 53, 54(1) (b) and 93(10) of the Statute are instructive for interpreatation purposes. Paragraphs 4, 6 and 10 of the Preamble to the Rome Statute are equally important in determining whether a legal basis exists for positive complementarity in the Rome Statute. Nouwen argues that the Statute explicitly provides the ICC prosecutor with powers only in some identified aspects of positive complementarity.^[37]

In conclusion it is still debatable whether the Statute provides for positive complementarity.

4 2010 Kampala Review Conference on Stocktaking of the Rome Statute

The Kampala Review Conference, in its stocktaking exercise adopted a resolution on complementarity which gave renewed significance to positive complementarity.^[38] The Report states that positive complementarity refers to all the activities/actions whereby national jurisdictions are strengthened and enabled to conduct genuine national investigations and trials of crimes included in the Rome Statute without involving the International Criminal Court in capacity building,^[39] financial support and technical assistance, but instead leaving these actions and activities for States, to assist each other on a voluntary basis.^[40]

The Bureau further recommended that a report on positive complementarity be compiled by the state parties and that this be presented to the ASP for further attention. Further, apart from setting up a designated function within the Secretariat of the ASP, the Bureau and ASP should continue to engage with stakeholders at domestic level through positive complementarity. Moreover, the Secretariat of the ASP was requested by the Bureau to facilitate the exchange of vital information between the state parties, the ICC, civil society, international and regional organisations, and other stakeholders, with the overall aim of reinforcing the effectiveness of parties’ domestic jurisdiction.^[41]

Notwithstanding the apparent consensus on the use of the term positive complementarity throughout the review session, Germany and Spain interrogated the tenability and legal foundation of the concept. The Spanish delegation, for instance, suggested that the set of initiatives or activities included under positive complementarity might as well be simply referred to as ‘technical assistance’.^[42] Similarly, the German representatives indicated, sceptically, that the term positive complementarity lacked legal basis within the context of the provisions of the Rome Statute, and that it only “served to confuse judicial capacity building with the principle of complementarity as laid down in Article 17 of the Rome Statute.”^[43]

The two preceding arguments by Germany and Spain are indeed persuasive challenges to the normative justification of the concept of positive complementarity.

The definition of positive complementarity was finally adopted by the Review conference, by consensus, without any new legal obligation being introduced or imposed. As a consequence, no legal or institutional framework was formulated in the resolution to back the definition up.

In conclusion, the definition of positive complementarity was characterised by loose ends that defy normative exactitude.

5 The Greentree process

“The Greentree process” also addressed the concept of positive complementarity. The first retreat in the Greentree process deliberated on ‘Complementarity after Kampala: The way forward’.^[44] It sought to build on the momentum generated at the Kampala conference in promoting and implementing complementarity at domestic level.^[45]

Significantly, the Greentree I meeting recommended that stakeholders adopt a whole of government approach to complementarity.

In conclusion, the Greentree I retreat marked a serious attempt by stakeholders to implement the principle of complementarity in the context of domestic and international criminal jurisdiction.

Greentree II convened between 7 and 9 December 2011 under the theme ‘Supporting complementarity at the national level: An integrated approach to the rule of law’.^[46] The retreat focused on deepening the deliberations and discussions on technical and operational aspects strengthening complementarity at the domestic level.^[47]

The Greentree II aimed to explore ways and means of implementing the concept of complementarity and strengthening domestic systems to empower them to investigate and prosecute Rome Statute crimes.^[48] Significantly, Greentree II examined the role that the ICC and the ASP to the Rome Statute can play in the strengthening of national capacity to investigate and prosecute serious international crimes.^[49]

Most importantly, Greentree II proposed to put the principle of complementarity more clearly on the agenda of the ASP.^[50]

The Greentree III retreat was convened between 25 and 26 October 2012 with the theme: ‘Supporting complementarity at the national level: From theory to practice.’^[51] Greentree III focused on the needs and challenges confronting selected states currently engaged in the investigations and prosecutions under the Rome Statute – Colombia, the Democratic Republic of the Congo (DRC), Guatemala, and the Ivory Coast (Cote d’Ivoire).^[52] It was highlighted that the four states faced challenges in the promotion of accountability in their respective domestic criminal courts.^[53] The challenges noted included a lack of adequate training among existing staff, lack of infrastructure and financial resources, and limited human resources.^[54]

In conclusion, the Greentree process, as seen through its three retreats, provided a valuable forum for the articulation of the nexus between international criminal justice and the developmental agenda to advance positive complementarity.

[...]

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^[1] Rome Statute adopted by the United Nations Diplomatic Conference of the Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998 Doc A/CONF/183/9 available at https://treaties.un.org/ doc/Publication/UNTS/Volume%202187/v2187.pdf (visited 1 December 2017).

^[2] Art 1 of the Rome Statute.

^[3] See discussion in D Tladi “Complementarity and cooperation in international criminal justice: Assessing initiatives to fill the impunity gap” Institute of Security Studies Paper 27 November 2014.

^[4] See generally, The Prosecutor v Francis Karimi Muthaura, Uhuru Muigai Kenyatta and Muhammed Hussein Ali ICC-01/09-02/11 (30 May 2011) available at http://www.icc-cpi.int/iccdocs/doc/doc1078823.pdf (visited 27 December 2017).

^[5] Ceremony for the Solemn Undertaking of the Chief Prosecutor, Statement by Luis Moreno Ocampo, 16 June 2003, available at http://www.icc-cpi.int/NR/rdonlyreas/D7572226-264A-4B6B-85E3-2673648B4896/143585/030616_moreno_ocampo_english.pdf (visited 23 December 2017).

^[6] See generally M Bergsmo “The jurisdictional regime of the international criminal court” 4 European Journal of Crime, Criminal Law and Criminal Justice (1998) 345-63.

^[7] Paper on some policy issues before the Office of the Prosecutor September 2003, available at http://www.icc-cpi.int/otp_policy.html para II (2.2) (visited 1 December 2017).

^[8] LM Ocampo “A positive approach to complementarity: The impact of the Office of the Prosecutor” in C Stahn and MM El Zeidy (eds) The International Criminal Court and Complementarity: From Theory to Practice (Cambridge: Cambridge University Press, 2011) 21-32.

^[9] See generally, Office of the Prosecutor “Paper on some policy issues before the Office of the Prosecutor September 2003” available at http://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25-60aa962ed8b6/143594/030905_policy_paper.pdf (visited 24 December 2017).

^[10] Ibid.

^[11] See Report of the Prosecutor of the ICC, Mr. Luis Moreno-Ocampo, Second Assembly of States Parties to the Rome Statute of the International Criminal Court 8 September 2003 available at http://amicc.org/docs/Ocampo9_03.pdf (visited 25 December 2017).

^[12] Office of the Prosecutor “Report on Prosecutorial Strategy 14 September 2006” 3 available at http://www.icc-cpi.int/NR/rdonlyres/D673DD8C-D427-4547-BC69-2D363E07274B/143708/ ProsecutorialStrategy20060914_English.pdf (visited 23 December 2017). See also LM Ocampo “A postive approach to complementarity” 23.

^[13] F Gioia “‘Reverse cooperation’ and the architecture of the Rome Statute: A vital part of the relationship between States and the ICC?” in MC Malaguti (ed) ICC and International Cooperation in light of the Rome Statute. Proceedings of the Workshop held in Lecce 21-22 October 2005 (Argo Leece, 2007) 75-102.

^[14] Office of Prosecutor “Report on Prosecutorial Strategy 1 February 2010” available at http://www.icc-cpi.int/NR/rdonlyres/66A8DCDC-3650-4514-AA62-D229D1128F65/281506/Office of the ProsecutorProsecutorialStrategy20092013.pdf paras 8 and16 (visited 23 December 2017).

^[15] See generally RS Clark “Amendments to the Rome Statute of the International Criminal Court considered at the first Review Conference on the Court, Kampala 31 May-11 June 2010” 2 Goettingen Journal of International Law (2010) 687-711.

^[16] See ME Cross and S William “Recent developments at the ICC: Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui – A boost for ‘cooperative complementarity’?” Human Rights Law Review (2010) 336-45.

^[17] See F Gioia “‘Reverse cooperation’ and the architecture of the Rome Statute: A vital part of the relationship between States and the ICC?” in MC Malaguti (ed) ICC and International Cooperation in light of the Rome Statute. Proceedings of the Workshop held in Lecce 21-22 October 2005 (Argo Leece, 2007) 75-102. See also Bassy G “Proactive complementarity – A Registrar’s perspective and plans” in C Stahn and MM El Zeidy (eds) The International Criminal Court and Complementarity: From Theory to Practice ( Cambridge: Cambridge University Press, 2011) 52-67.

^[18] See generally C Stahn “Taking complementarity seriously” 233-82.

^[19] Ibid.

^[20] See arts 17 and 53 of the Rome Statute.

^[21] See generally C Stahn “Taking complementarity seriously” 233-82.

^[22] See W Burke-White 18 Leiden Journal of International Law (2005) 557- 90; W Burke-White 49 Harvard International Law Journal (2008) 53-108; W Burke-White 19 Criminal Law Forum (2008) 59-85; and finally, W Burke-White and S Kaplan 7 Journal of International Criminal Justice (2009) 257-79.

^[23] See W Burke-White 1 Harvard International Law Journal (2008) 49.

^[24] Compare with the works, for instance, in SMH Nouwen Complementarity in the Line of Fire - The Catalytic Effect of the International Criminal Court in Uganda and Sudan (Cambridge: Cambridge University Press, 2013) 11-45.

^[25] See D Robinson “The mysterious mysteriousness of complementarity” 22/3 Criminal Law Forum (2010) 67-102; B Perrin “Making sense of complementarity: The relationship between the international criminal court and national jurisdictions” 18 Sri Lanka Journal of International Law (2006) 301-26.

^[26] See SMH Nouwen Complementarity in the Line of Fire - The Catalytic Effect of the International Criminal Court in Uganda and Sudan (Cambridge: Cambridge University Press, 2013) 11.

^[27] Ibid .

^[28] Ibid.

^[29] In light of Nouwen’s argument it is instructive to look at F Gioia “Reverse cooperation” 75-102.

^[30] See generally Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi ICC-01-/11-01/11 2013.

^[31] Ibid at 90.

^[32] Ibid at 91.

^[33] Ibid. See Prosecutor v Said Al-Islam Gaddafi and Abdullah Al-Senussi ICC-01/11-01/11-1 PT Ch I (27 June 2011).

^[34] Ibid.

^[35] See C Stahn “Taking complementarity seriously” 233-82.

^[36] See generally DY Hewett “Sudan’s courts and complementarity in the face of positive complementarity” 31 Yale Journal of International Law (2006) 276 - 278.

^[37] See SMH Nouwen Complementarity in the Line of Fire 98. See AM Danner “Enhancing the legitimacy and accountability of prosecutorial discretion at the International Criminal Court” 97 American Journal of International Law (2002) 510-43.

^[38] See RS Clark “Amendments to the Rome Statute of the International Criminal Court considered at the first Review Conference on the Court, Kampala 31 May-11 June 2010” 2 Goettingen Journal of International Law (2010) 687-711. See also M Blaak 2 Equality of Arms Review (2010) 10-13.

^[39] See generally Proceedings of the Kampala Review Conference on the Rome Statute, by the Focal points (Denmark and South Africa) outlined examples of projects aimed at strengthening domestic jurisdictions to deal with article 5 crimes RC/ST/CM/INF.2 30 May 2010 available at http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-ST-CM-INF.2-ENG.pdf (visited 29 December 2017).

^[40] Paragraph 16 of the Report of the Bureau at Eighth Resumed Session.

^[41] Ibid.

^[42] See generally, O Bergsmo, O Bekou and A Jones 2 Goettingen Journal of International Law (2010) 794 available at http://www.casematrixnetwork.org/fileadmin/documents/Goettingen_Journal _of_International_Law_2010_2_791-811.pdf (visited 29 June 2017).

^[43] Ibid.

^[44] held between 28-29 October 2010 at Greentree Retreat, USA. For a summary of the meeting see generally, The International Center for Transitional Justice Meeting summary of the retreat on “Complementarity after Kampala: The way forward” 12 November 2010 available at https://asp.icc-cpi/iccdocs/asp_docs/Events/2010/MeetingSummary-Complementarity-Retreat-13Nov-ENG.pdf (visited 9 December 2017).

^[45] See generally, for a comparative view, the three Reports of the International Center for Transitional Justice for 2010, 2011 and 2012 available respectively at http://www.ictj.org/sites/default/files/ICTJ-Global-Complementarity-Greentree-2010-English.pdf (visited 9 December 2017); http://www.ictj.org/sites/default/files/ICTJ-Global-Greentree-Two-Synthesis-Report-2011.pdf (visited 9 December 2017); and http://www.ictj.org/sites/default/files/ICTJ-Report-Greentree-III-Synthesis-ENG-2012.pdf (visited 9 December 2017).

^[46] See generally, International Center for Transitional Justice synthesis report “Supporting complementarity at the national level: An integrated approach to rule of law” available at http://www.ictj.org/sites/default/files/ICTJ-Global-Greentree-Two-Synthesis-Report-2011.pdf (visited 10 December 2017).

^[47] Ibid.

^[48] See ICTJ Synthesis Report on Greentree I “Complementarity after Kampala: The way forward” 12 November 2010 available at http://www.ictj.org/sites/default/files/ICTJ-Global-Complementarity-Greentree-2010-English.pdf (visited 10 December 2017).

^[49] Ibid at para 10.

^[50] Ibid at para 13.

^[51] See generally International Center for Transitional Justice synthesis report on “Supporting complementarity at the national level: From theory to practice” Greentree Estate, Manhasset New York 25-26 October 2012 available at http://www.ictj.org/sites/default/files/ICTJ-Report-Greentree-III-Synthesis-ENG-2012.pdf (visited 10 December 2017).

^[52] Ibid at para 5.

^[53] See generally International Center for Transitional Justice synthesis report “Supporting complementarity at the national level: From theory to practice” Greentree Estate, Manhasset New York 25-26 October 2012 para 6 available at http://www.ictj.org/sites/default/files/ICTJ-Report-Greentree-III-Synthesis-ENG-2012.pdf (visited 10 December 2017).

^[54] Ibid.