The International Criminal Court (ICC) Prosecutorial Strategy 2009–12 reaffirmed the commitment of the Office of the Prosecutor (OTP) to positive complementarity. The Prosecutor recognised the inability of the ICC to deal with all cases of mass atrocities and the importance of relying on national systems if international criminal justice is to be effective. The article first proposes a two-pronged approach to complementarity that distinguishes between its legal and policy dimensions. On the basis of the analysis of the situations in the Democratic Republic of Congo, Uganda and Colombia, it will be argued that the OTP has taken controversial decisions from the viewpoint of complementarity stricto sensu and positive complementarity that may undermine filling the impunity gap as well as the legitimacy of the ICC. Attention is then drawn to the common substratum of the ad hoc tribunals' completion strategy and positive complementarity. It is explained how the experience of the completion strategy offers a valuable cluster of lessons to be applied within the spectrum of positive complementarity. In concluding, the article suggests measures for the execution of positive complementarity and the Law Enforcement Network, with the intention of optimising efforts and resources within the ICC system.
1 Rome Statute of the International Criminal Court (ICC Statute) (entered into force 1 July 2002) 2187 UNTS 90.
2 Robinson, Darryl, ‘The Mysterious Mysteriousness of Complementarity’ (2010) 21 Criminal Law Forum 67. Robinson explains in detail the two-step insight of art 17 whereby inactivity dictates the admissibility of cases before the ICC (if gravity requirements are fulfilled). For the opposing view (considering that the OTP and the chambers' decision, according to which the non-existence of domestic proceedings dictates the admissibility of cases, is a manifestation of judicial activism) see Schabas, William, ‘Prosecutorial Discretion v Judicial Activism’ (2008) 6 Journal of International Criminal Justice 731.
3 See OTP, Report on the Activities Performed during the First Three Years (June 2003–June 2006), 12 September 2006, paras 2, 58, http://www.icc-cpi.int/NR/rdonlyres/D76A5D89-FB64-47A9-9821-725747378AB2/143680/OTP_3yearreport20060914_English.pdf.
4 Stahn, Carsten, ‘Perspectives on Katanga: An Introduction’ (2010) 23 Leiden Journal of International Law 311, 312.
5 See OTP, ‘Prosecutorial Strategy 2009–2012’ (OTP Prosecutorial Strategy 2009–12), para 17, http://www.icc-cpi.int/NR/rdonlyres/66A8DCDC-3650-4514-AA62-229D1128F65/281506/OTPProsecutorialStrategy20092013.pdf.
6 ibid para 16.
7 ICC Statute (n 1) art 17 and preamble, para 6.
8 ibid art 53(1).
9 In other words, this framework ensures that ‘the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation’: ibid preamble, para 4.
10 Weber, Max, The Theory of Social and Economic Organization (Free Press 1957) 328.
11 Struett, Michael J, The Politics of Constructing the International Criminal Court, NGOs, Discourse, and Agency (Palgrave Macmillan 2008) 153.
12 By way of illustration, even the most vocal opponent of the ICC – the United States – has manifested its commitment to contributing to positive complementarity: Stephen J Rapp, Ambassador at Large for War Crimes Issues, United States of America, Speech to Assembly of States Parties, The Hague, 19 November 2009, http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/Statements/ICC-ASP-ASP8-GenDeba-USA-ENG.pdf. Ambassador Rapp referred to a current review of US law aimed at setting out the landscape to permit cooperation. President Obama's Administration is still working on the official policy on the ICC.
13 ICC, Prosecutor v Thomas Lubanga Dyilo, Warrant of Arrest, ICC-01/04-01/06, 10 February 2006, http://www.icc-cpi.int/iccdocs/doc/doc191959.PDF.
14 ‘[Mr Lubanga] must be delighted to find himself in The Hague facing a prosecution for relatively less important offences concerning child soldiers than genocide and crimes against humanity’: Schabas (n 2) 743–44.
15 Professor Robinson contends that the DRC opted not to use this avenue as the domestic file against Mr Lubanga was ‘literally empty’: Robinson (n 2) 101, note 109.
16 ICC, Prosecutor v Katanga and Ngudjolo, Motion Challenging the Admissibility of the Case by the Defence of Germain Katanga pursuant to Article 19(2)(a) of the Statute, ICC-01/04-01/07-949, 11 March 2009, paras 4–6, 9, 14.
17 ibid paras 51–96, 108.
18 ICC, Prosecutor v Katanga and Ngudjolo, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), ICC-01/04-01/07-T-67-ENG, 16 June 2009, paras 77, 95.
19 ICC, Prosecutor v Katanga and Ngudjolo, Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009. On the refusal of the appeals chamber to examine the ‘same conduct’ test, see Batros, Ben, ‘The Judgment on the Katanga Admissibility Appeal: Judicial Restraint at the ICC’ (2010) 23 Leiden Journal of International Law 343, 347–51.
20 ibid 75–83.
21 The defence in Katanga called this proposal the ‘test of comparative gravity’: see ICC, Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), ICC-01/04 – 01/07, 16 June 2009.
22 In Uganda, eg, President Museveni referred the situation to the ICC well aware of the fact that he would not face proceedings before the ICC while his opponents, sharing power at the time, would most likely be charged. Mr Lubanga was a target in the DRC of the same type of strategy. See Burke-White, William W, ‘Complementarity in Practice: the International Criminal Court as Part of a System of Multi-Level Global Governance in the Democratic Republic of Congo’ (2005) 18 Leiden Journal of International Law 557, 563–68.
23 Apuuli, Kasaija Phillip, ‘The ICC's Possible Deferral of the LRA Case to Uganda’ (2008) 6 Journal of International Criminal Justice 801, 805–06.
24 Jane F Kiggundu, Acting Solicitor General, ‘Letter to the Registrar of the International Criminal Court’, 27 March 2008, as cited in Burke-White, William W and Kaplan, Scott, ‘Shaping the Contours of Domestic Justice: The International Criminal Court and an Admissibility Challenge in the Ugandan Situation’ in Stahn, Carsten and Sluiter, Goran (eds), The Emerging Practice of the International Criminal Court (Martinus Nijoff 2009) 79, 103 n 124.
26 Ugandan Amnesty Act 2000, http://www.beyondjuba.org/BJP1/policy_documents/Amnesty_ACT_Chapter_294.pdf.
27 ICC, The Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, Decision Initiating Proceedings under Article 19, Requesting Observations and Appointing Counsel for the Defence, ICC-02/04-01/05, Pre-Trial Chamber II, 21 October 2008, paras 14, 15, 21, 29.
28 ICC, The Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, Decision on the Admissibility of the Case under Article 19(1) of the Statute, ICC-02/04-01/05, Pre-Trial Chamber II, 10 March 2009, para 9.
29 ICC, The Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, Judgment on the Appeal of the Defence against the ‘Decision on the Admissibility of the Case under Article 19(1) of the Statute’ of 10 March 2009, ICC-02/04-01/05 OA 3, Appeal Chamber, 16 September 2009.
30 Schabas, William, ‘Complementarity in Practice: Some Uncomplimentary Thoughts’ (2008) 19 Criminal Law Forum 9, 18.
31 International Criminal Court Bill 2006, http://www.coalitionfortheicc.org/documents/Uganda-ICC_Bill_2006.pdf. Conflicting news concerning President Museveni's signing of the bill (as required for its coming into force) were repeatedly reported: see, eg, Bill Oketch, ‘Uganda Set for First War Crimes Trial’, Institute for War and Peace Reporting, 14 July 2010, http://iwpr.net/report-news/uganda-set-first-war-crimes-trial.
32 A further remaining doubt concerning the mandate of the War Crimes Division is whether it is competent to prosecute state actors. The Juba agreements implied that it could not, but the International Criminal Court Act 2010 does not prohibit it: see Michael Otim and Marieke Wierda, ‘Uganda: Impact of the Rome Statute and the International Criminal Court’, International Centre for Transitional Justice, May 2010, 3, http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/Stocktaking/RC-ST-V-M.7-ENG.pdf.
33 The Honourable Justice Elizabeth Nahamya-Ibanda of the Special War Crimes Division of the High Court of Uganda, ‘The Mandate and Activities of the Special War Crimes Division of the High Court Uganda’, speech given at the Seminar ‘Challenges of Complementarity under the Rome Statute System and the Role of Lawyers: Lessons and Prospects’, organised by Advocats Sans Frontières in collaboration with the Ugandan Law Society, 1 January 2010, Kampala (Uganda) (on file with the author).
34 It is important to note that this proposal does not amount to suggesting that a state may withdraw unilaterally the referral made. Rather, the decision to defer to national authorities is within the exclusive competence of the ICC.
35 Prosecutor v Joseph Kony and Others, 10 March 2009 (n 28) para 28.
36 See, eg, Ali Wasil, ‘African Union Now Officially Naked before the World & Darfuris’, Sudan Tribune, 21 July 2009, http://www.sudantribune.com/spip.php?page=imprimable&id_article=31879.
37 There are two major guerrilla groups: (i) the ELN (Ejercito de Liberacion Nacional), which is inspired by the Cuban Revolution in the fight against capitalism and imperialism; and (ii) the FARC-EP (Fuerzas Armadas Revolucionarias de Colombia – Ejercito del Pueblo) which was born in 1964 as a Marxist-Leninist movement intended to overthrow the government and install a Marxist regime. While their message initially reflected the feelings of the people, their violent tactics eroded public support. In the 1970s and 1980s landlords and drug dealers created their own private armies to protect their economic interests. In 1997 the leaders of these paramilitary groups founded the AUC (Autodefensas Unidas de Colombia), a right wing movement that originated largely as a response to the FARC.
38 Members of paramilitary groups have admitted to having worked side by side with army soldiers in the framework of projects coordinated by high-ranking members of the military: Esquirol, Jorge L, ‘Can International Law Help? An Analysis of the Colombian Peace Process’ (2000) 16 Connecticut Journal of International Law 23, 34–35; International Crisis Group, ‘Correcting Course: Victims and the Justice and Peace Law in Colombia’, Latin America Report, No 29, 30 October 2008, 17, 18–19, http://www.crisisgroup.org/~/media/Files/latin-america/colombia/recting_course___victims_and_the_justice_and_peace_law_in_colombia.pdf.
39 For example, the Inter-American Court of Human Rights (IACtHR) concluded that security forces collaborated to engage in torture, disappearances, extrajudicial killings and massacres by providing transportation, munitions and communications to paramilitaries and failing to protect the civilian population: Mapiripan Massacre (2006) Inter-Am Ct HR (Ser C) No 134, paras 96.32, 96.35. For a comprehensive account of human rights violations, see Human Rights Watch, ‘Breaking the Grip? Obstacles to Justice for Paramilitary Mafias in Colombia’, 2008, 80–90, http://www.hrw.org/sites/default/files/related_material/colombia1008web.pdf. See, eg, Amnesty International, ‘Leave Us in Peace! Targeting Civilians in Colombia's Internal Armed Conflict’, AI Index AMR 23/023/2008, October 2008, 25–71. See also Easterday, Jennifer S, ‘Deciding the Fate of Complementarity: A Colombian Case Study’ (2009) 26 Arizona Journal of International and Comparative Law 46, 60–69.
40 With regard to the demobilisation effort, the process is far from equitable. Most paramilitaries who have agreed to disarm are compensated with considerable legal and economic advantages without even having to fully confess to their crimes. For a comprehensive analysis of Colombia's recent efforts to fight impunity, see Easterday, ibid 71–79.
41 Ley 975 de 2005, Ley de Justicia y Paz, Diario Oficial [DO] 45.980, 25 July 2005 (Colombia).
42 ibid arts 11, 17, 29. The sentences range from five to eight years, to be carried out in farm-like, low-security prisons, and reduced by up to 18 months.
43 President Alvaro Uribe, ‘El Mundo esta’ lleno de Leyes de Paz', Bogota, 24 June 2005 (translation by Easterday (n 39) 80).
44 Uribe, ibid 96. On the partial approach of the government to the conflict see, eg, Laplante, Lisa J and Theidon, Kimberly, ‘Transitional Justice in Times of Conflict: Colombia's Ley de Justicia y Paz’ (2006) 28 Michigan Journal of International Law 49, 61.
45 Sentencia [S] No C-370/06, Diario Oficial [DO] 18 May 2006 (Columbia), http://www.acnur.org/biblioteca/pdf/4276.pdf.
46 Decreto 3391 de 2006, 29 September 2006. For example, the Decree restated art 31 JPL, which reduced sentences for time spent by demobilised persons in the so-called concentration zone while the provision had been considered unconstitutional by the Colombian Constitutional Court. Further, the court held that the ‘Justice and Peace Confinement Sites’ – the location where demobilised persons covered by the JPL were to serve their sentences – should be controlled by the state penitentiary authorities. Decree 3391 rules that such sites may be used for JPL detainees but does not elaborate on the conditions of the sites, nor does it provide that the latter are to be submitted to the authority of the state penitentiary organs. On this subject see the IACtHR 2007 Report: IACtHR, ‘Report on the Implementation of the Justice and Peace Law: Initial Stages in the Demobilization of the AUC and First Judicial Proceedings’, OEA/Ser L/V/II Doc 3, 2 October 2007, paras 50–54.
47 Easterday (n 39) 71, arguing that ‘the politics of transitional justice mask the Colombian genuine unwillingness to prosecute those responsible for mass atrocities’. See also International Crisis Group (n 38) 18–19.
48 As previously noted, the JPL primarily addresses AUC members, whose involvement with the government is long-running. The US State Department, non-governmental organisations, and even Colombian authorities such as the Colombian Ombudsman have extensively documented the relationship between the military and the paramilitaries since, at least, 1980.
49 US Department of State Report, ‘Colombia, Country Report on Human Rights Practices’, 2006, paras 1(d)–1(e), http://www.state.gov/g/drl/rls/hrrpt/2005/61721.htm. For an account of a specific example of the failure of the judiciary, see Easterday (n 39) 89–91.
50 For a detailed account of the problems concerning the protection of victims and witnesses and their impact on investigations and prosecutions, see International Crisis Group (n 38) 30.
51 US State Department (n 49) para 1(e).
52 International Criminal Court, Office of the Prosecutor, ‘Informal Expert Paper: The Principle of Complementarity in Practice’, 2003, para 50 and Annex 4, http://www.icc-cpi.int/iccdocs/doc/doc654724.PDF.
53 ‘The purpose of that clause in the Statute is to ensure that mass murderers and other arch-criminals cannot shelter behind a state run by themselves or by their cronies, or take advantage of a general breakdown of law and order’: Secretary General Kofi Annan, ‘Secretary General Urges “Like Minded” States to Ratify Statute of International Criminal Court’, Press Release, 1 September 1998, UN Doc SG/SM/6686, http://www.un.org/News/Press/docs/1998/19980901.sgsm6686.html.
54 OTP, ‘Situation in Colombia, Interim Report’, November 2012, http://www.icc-cpi.int/NR/rdonlyres/3D3055BD-16E2-4C83-BA85-35BCFD2A7922/285102/OTPCOLOMBIAPublicInterimReportNovember2012.pdf.
55 For a concise but comprehensive discussion on these and other topics raised by the Interim Report, see Kai Ambos, ‘Examen preliminar de la Fiscalia de la CPI al caso colombiano’, ADS – Asuntos del Sur, Informe, 29 December 2012, http://www.asuntosdelsur.org/informe-examen-preliminar-de-la-fiscalia-de-la-cpi-al-caso-colombiano.
56 OTP Prosecutorial Strategy 2009–2012 (n 5), providing that positive complementarity is to be facilitated where, inter alia, the safety of judges, witnesses and victims is assured. Obviously, positive complementarity presupposes a judicial system that is able and willing to genuinely undertake proceedings.
57 The Statute of the International Criminal Tribunal for the former Yugoslavia (Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808(1993), UN Doc S/25704 (3 May 1993), adopted by the Security Council in Resolution 827 (25 May 1993)), art 9 provides:
1. The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991.
2. The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence [(RPE)] of the International Tribunal.
Rules 8 to 13 of the RPE ((entered into force 14 March 1994) UN Doc IT/32/Rev 49, 22 May 2013, http://www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032Rev49_en.pdf) expound on the primacy of the ICTY. Rule 9 provides for three circumstances upon which the Prosecutor is allowed to ask the trial chamber to issue a formal request of deferral: (i) where the act being investigated by the domestic jurisdiction is classified as an ordinary crime; (ii) the national proceedings are a sham; and (iii) the matter is closely related, factually or legally, to investigations or prosecutions before the international tribunal. See also the Statute of the International Criminal Court for Rwanda, annexed to UNSC Res 955(1994), 8 November 1994, UN Doc S/RES/955 (1994), art 8.
58 In the words of Fausto Pocar, former President of the ICTY, ‘the Tribunal, from its inception, was established to exercise primary jurisdiction only for a short period and because of the inability of local judiciaries to deliver justice or ensure a future of peace to the region’: Pocar, Fausto, ‘Completion or Continuation Strategy? Appraising Problems and Possible Developments in Building the Legacy of the ICTY’ (2008) 6 Journal of International Criminal Justice 655, 655.
59 See also UNSC Res 1534(2004), 26 March 2004, UN Doc S/RES/1534 (2004). As a result of delays the transfer of cases was behind schedule. Through this resolution the Security Council addressed the matter by postponing the initial deadlines but reaffirming to the fullest extent the purposes of UNSC Res 1503(2003), 28 August 2003, UN Doc S/RES/1503 (2003).
60 The OTP monitors the transferred proceedings through the Organization for Security and Cooperation in Europe (OSCE).
61 The ICTY's former President Pocar calls this strategy one of ‘continued legacy building’ rather than ‘completion strategy’ as it ‘effectively means returning cases back to where they belong, but only after ensuring that local institutions once again have become ready, willing and able to manage them’: Pocar (n 58) 661.
62 For an overview of the completion strategy, see Møse, Erik, ‘The ICTR's Completion Strategy – Challenges and Possible Solutions’ (2008) 4 Journal of International Criminal Justice 667.
63 ICC Statute (n 1) arts 15(3), 18(6).
64 The analysis takes as its reference the experience of the ICTY but the conclusions reached are largely applicable in respect of the ICTR.
65 These cases, known as ‘Category Two cases’, are not subject to a formalised procedure, as opposed to cases within r 11 bis.
66 Law on the Transfer of Cases from the ICTY to the Prosecutor's Office of BiH and the Use of Evidence Collected by the ICTY in Proceedings before Courts in Bosnia and Herzegovina.
67 For example, ICTY, Prosecutor v Ljubičić, Fourth OSCE Report annexed to the Fifth OTP Progress Report on the same case, IT-00-41-PT, 19 September 2007. See also Law on Protection of Vulnerable Witnesses and Witnesses under Threat (Bosnia and Herzegovina).
68 Registry Annual Report, ‘Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina’, Special Departments for War Crimes and for Organised Crime, Economic Crime and Corruption of the Prosecutor's Office of Bosnia and Herzegovina, 2006, 49–50.
69 Prosecutor v Lukić and Lukić, Joint Motion of Defence Counsel for Milan Lukić and Sredoje Lukić for Leave to Submit Supplemental Response to Prosecutor's Request under Rule 11 bis and for Evidentiary Hearing, 1 March 2007, as cited in Katsaris, Pipina, ‘The Domestic Side of the ICTY Completion Strategy: Focus on Bosnia and Herzegovina’ (2007) 78 Revue Internationale de Droit Penal 183, 193.
71 BiH Constitutional Court, Abdouladhim Maktouf, Decision on Admissibility and Merits, Case No 1785/06, 30 March 2007, paras 69, 89, https://www.google.co.il/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CDMQFjAA&url=http%3A%2F%2Fwww.codices.coe.int%2FNXT%2Fgateway.dll%2FCODICES%2Ffull%2Feur%2Fbih%2Feng%2Fbih-2007-2-003&ei=k1JLUaRSiOe1BpiHgOgH&usg=AFQjCNGtoYmvANRz51Z_V6ey19PA19WGng&sig2=9xNQSe3Qc9-QiYkpuGGxYA&bvm=bv.44158598,d.Yms&cad=rja.
72 ICTY, Prosecutor v Stanković, Seventh OTP Progress Report annexing the Sixth OSCE Report on the Same Case, IT-96-23/2-PT, 27 June 2007, 3.
73 ibid, 14 of OSCE Report.
74 Nidzara Ahmetasevic, ‘Justice Report – Interview: Michael Johnson, Registrar of the Court of Bosnia Herzegovina’, Balkan Investigative Reporting Network, 17 March 2006, http://www.bim.ba/en/3/10/791.
75 ICTY, Prosecutor v Stanković, Third Progress Report annexing the OSCE Second Report on the Case, IT-96-23/2-PT, 7 June 2006.
76 ICTY, Prosecutor v Janković, Sixth OTP Progress Report annexing OSCE Fifth Report in the Case, IT-96-23/2-PT, 14 May 2007, 10.
77 Katsaris (n 69) 192.
78 For further information, visit http://www.sudbih.gov.ba.
79 With regard to the implementation of the ICC Statute, the Coalition for the ICC identified recurring weaknesses in national laws that derived from models or drafts prepared by international organisations providing technical assistance to states. Among these flaws are inadequate definition of crimes enshrined in the Statute and the politicised trigger-mechanism of national jurisdictions with regard to core crimes. See Meeting on Technical Issues Related to Implementing Legislation (organised by Parliamentarians for Global Action and Amnesty International), Journal of the ASP, No 2009/10, 3, 24 November 2009 (on file with the author).
80 Sixteenth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 to the General Assembly and the Security Council, pursuant to Article 34 of the Statute of the International Tribunal, 31 July 2009, UN Doc A/64/205-S/2009/384 para 73.
81 Similar to the avenues enshrined in r 11 bis (D).
82 ICC Statute (n 1) art 18(6).
83 Sonia Robla Ucieda, Head of Public Information and Documentation Section, International Criminal Court, ‘Engaging African Lawyers with the International Criminal Court’, speech given at the seminar ‘The Challenges of Complementarity under the Rome Statute System and the Role of Lawyers: Lessons and Prospects’, 1 June 2010, http://www.docstoc.com/docs/61449809/The-Challenges-of-Complementarity-under-the-Rome-Statute-System-and-the-Role-of-Lawyers-Lessons-and-Prospects-A-breakfast-seminar-organized-by-ASF-in-collaboration.
84 Teitel, Ruti, ‘Law and Politics of Contemporary Transitional Justice’ (2005) 38 Cornell International Law Journal 837, 852.
85 For example, the fact that no members of governmental forces have been indicted by the OTP has been seen as a consequence of the understanding between the Prosecutor and President Museveni that led to the self-referral of the situation in Uganda.
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