by Max du Plessis*

INTRODUCTION

Complementarity is certainly posited as a driving feature of the ICC regime. The ICC is expected to act in what is described as a ‘complementary’ relationship with domestic states that are party to the Rome Statute. The Preamble to the Rome Statute says that the ICC’s jurisdiction will be complementary to that of national jurisdictions, and article 17 of the Statute embodies the complementarity principle. At the heart of this principle is the ability to prosecute international criminals in one’s national courts, on behalf of the international community, or to have in place mechanisms to arrest and surrender to the ICC persons that the court seeks to prosecute and who happen to be in one’s jurisdiction.

Linked to the principle of complementarity is the practice of universal jurisdiction.  The ICC does not exercise universal jurisdiction.  But states do, and it is here that the real potential lies for states to act as impunity gap fillers – acting where the ICC is unable or unwilling to do so.

Various developments in Africa suggest a broader understanding of complementarity that is unfolding in practice and which is worthy of further exploration. This broader understanding in certain respects falls within the notion of ‘positive complementarity’, or perhaps better phrased, ‘proactive complementarity’ – a term meaning that the ICC and states should actively encourage genuine national proceedings where possible, and that national and international networks should be relied upon as part of a system of international cooperation.

The motivating force behind positive complementarity is the understanding that the ICC and domestic jurisdictions share a common responsibility. This common responsibility means that there is scope for domestic criminal justice institutions and the ICC to act as a complement to one another. As one commentator has explained, we might see ‘positive complementarity as the opposite of “passive” complementarity’, namely as a concept, which ‘welcome[s] and encourage[s] efforts by States to investigate and prosecute international crimes and recognize[s] that such national proceedings may be an effective and efficient means of ending impunity’.

This idea of positive complementarity has, however, been confined to describing the partnering between the ICC and states parties in respect of situations or crimes over which the ICC or the state party both have potential jurisdiction under the Rome Statute (examples include South Africa and Kenya both taking steps under their respective ICC domestic legislation to implement the arrest warrant for President al Bashir of Sudan, a warrant issued by the ICC). Thus, in the first place, the Rome Statute’s presumption of complementarity is predicated on a mutual relationship between the ICC and states parties, but ultimately in the service of cases over which the ICC has jurisdiction or potential jurisdiction. Under complementarity the exercise of that jurisdiction by the ICC would be prevented if a state party or a non-state party demonstrated a good faith willingness and ability to prosecute the offender before a domestic court. But the ICC would have to have potential jurisdiction in the first place for the complementarity principle to be operative under the Rome Statute – for the simple reason that the ICC cannot operate, and the standard principle of complementarity cannot operate, in respect of a case over which the ICC in any event does not have jurisdiction. I would encourage us, however, to think about complementarity even more positively than that: to extend to those cases where the ICC would not ordinarily have jurisdiction.

Take crimes that might be committed in Zimbabwe, for example. Zimbabwe is not a state party and hence (failing a UN Security Council referral), the ICC does not have jurisdiction in relation to the crimes committed by Zimbabwean nationals or on Zimbabwean territory. Accordingly, for the ICC the question of complementarity vis-à-vis Zimbabwe does not arise under the Rome Statute.  Nor does it arise for the ICC in relation to Gaza and the crimes committed there; or Syria for that matter.

But what about a neighbour, like South Africa, which is a state party to the Rome Statute? Could South Africa, assuming jurisdiction under its ICC implementation legislation, not play a vital complementary role to the otherwise jurisdiction-less ICC by investigating and prosecuting Zimbabwean offenders? Indeed, given its proximity to the offences, and precisely because the ICC does not have any jurisdiction in relation thereto, there is scope for contending that a state party (like South Africa) which does have jurisdiction could and should close the impunity gap by acting to complement the work of the ICC in situations where the ICC is unable to do so because it lacks jurisdiction under the Rome Statute, or because the international community has proved unwilling, through the UN Security Council, to refer the situation to the ICC.

While such action would occur through an assertion of universal jurisdiction (South Africa’s ICC implementation legislation, for instance, provides for this), that assertion of universal jurisdiction may also be described as a means of achieving a positive and buttressing complementarity between a state party and the ICC.

In relation to Gaza, moreover, there would be every basis for the ICC to investigate the crimes committed by Israel during Operation Cast Lead, but for the fact that the political unwillingness of the UN Security Council has ensured an impunity gap in respect of those crimes. Here too the question may be asked whether there is not a role for states parties of the Rome Statute to act in the place of the ICC where their domestic implementation legislation allows them to do so.

The discussion also covers the potential for negative complementarity – that is, when steps are taken notionally in support of the international criminal justice ideals of the ICC, but which may in fact be intended to distract from or undermine those ideals.

 LESSONS

So we have the potential for states to do domestically that which the ICC is unwilling or unable to do.  If that is radical complementarity, so be it.  Certainly it is a principle of complementarity that requires further discussion and debate.  For now, allow me to raise six practical questions or lessons that we might ponder in thinking about the future of international criminal justice, and its working out in the domestic realm.

The first is that in many cases it is unlikely that the domestic legislation in question (the ICC Act in South Africa, or the International Crimes Act in Kenya) would have been invoked by either of the governments or their prosecution agencies without the intervention of civil society. It has taken the work of civil society for cases to be brought to the relevant authorities; and the South African and Kenyan governments have not ‘self-initiated’ cases in accordance with their statutory and treaty obligations. (This may have as much to do with a lack of capacity in the respective police and prosecution agencies as with a lack of political will or priority given to international criminal justice in either government.) These examples for present purposes demonstrate the willingness and ability of African civil society actors to utilise domestic incorporation legislation to request and if necessary compel their governments to act in conformity with their international treaty obligations.  In discussing the roles of CSOs we must recognize that they might assist state actors to close impunity holes where they exist, and CSOs might provide an essential bridge between victims and the prosecution agencies in domestic contexts.  At the same time, we must acknowledge that CSOs may come with baggage and their own agendas and ideologies – and may be perceived, if not act, as interfering busybodies in the important work that state agencies are engaged in.  There has been, in my view, too little debate about how to establish a mutually constructive relationship between CSOs and state prosecution agencies in order to maximize the potential of complementarity.

Second, having the necessary domestic laws in place is central to ICC complementarity efforts, domestic prosecutions and broader justice processes aimed at closing the impunity gap. In addition, domestic legislation can usefully assist investigators, prosecutors and other senior officials to counter negative positions taken by their political principals on international justice. For example, when difficult choices have to be made between a state’s domestic legal obligations on the one hand and its foreign policy imperatives on the other, the former often wins out (as illustrated in the al-Bashir–Zuma inauguration case covered above). It is thus vital to push for domestic implementation legislation. The drive to ratify the Rome Statute must be backed up by tactful lobbying for implementation laws to be put in place. The problem too often is that international criminal justice – and the obligations of the Rome Statute – may be seen by parliamentarians and justice officials as exotic and unrelated to their national and departmental priorities. Domestication of the Rome Statute is the first step in bringing these obligations home; and the sense of disconnect or at least distance between the goals of international criminal justice and that of the state can begin to be removed. Domestication also makes it more difficult for governments to sidestep their treaty obligations, not least of all because a government’s failure to act under its own domestic law may more easily (than treaty law obligations) be framed as a ‘rule of law’ issue. This has been demonstrated in both the High Court decision in South Africa around the Zimbabwe torture docket (compelling the South African prosecution authorities to open a case into alleged torture committed in Zimbabwe), and the decision of the Kenyan High Court confirming an arrest warrant for al-Bashir. Accordingly, renewed energy should be directed at convincing all states parties to adopt legislation incorporating the obligations and ideals of the Rome Statute directly into domestic law. In many cases, especially in Africa where specialised legislative drafting capacity is in short supply, and economic and developmental priorities overshadow international justice ones, lobbying for domestication must be accompanied by offers of sustainable technical assistance to ensure the job gets done.

The third lesson is that domestic legislation may more easily and less controversially allow for universal jurisdiction as a complement to the work of international criminal tribunals and the ICC. That exercise of jurisdiction – through specialized domestic police and prosecution units – may be vitally important to close the impunity gap, particularly in respect of states that are not party to the Rome Statute and crimes that are committed by their nationals or on their territory. As noted above with respect to legislative drafting, this requires the capacitation of domestic investigators and prosecutors to enable them to handle the complexities and withstand the political controversies of pursuing cases against individuals accused of the world’s worst crimes. South Africa is a case in point, at least on the African continent. It is only because of South Africa’s ICC Act that a specialised prosecutorial unit now exists in the form of the Priority Crimes Litigation Unit in the National Prosecuting Authority. Units such as these will typically be small and have responsibility over a range of the most serious crimes facing the state and its citizens. Nevertheless, there is little doubt that such domestic units are an important future component of international criminal justice both under the principle of complementarity in terms of the Rome Statute, but also as units that may exercise universal jurisdiction where empowered to do so (and be challenged, by way of judicial review, if they fail to do so lawfully). Training and preferably the development of specialist capacity among the government officials tasked with responding to international crimes is key – as is sharing lessons learned between such units from different regions and countries (at conferences such as this one). Such specialisation need not, however, be an expensive and complicated institution-building exercise aimed at creating a large unit to deal with international crimes and ICC complementarity only. The reality is that few African states have the capacity and budgets for this approach. Instead a more flexible approach is worth considering (the Ugandan example is worth noting in this regard) that allows for a group of investigators, prosecutors and judges with experience in complex cases including organised and transnational crime, as well as mutual legal assistance (MLA) and extradition, to be selected and trained in order to initiate international crime cases or respond to requests for cooperation should they come their way (either from the ICC, other states or civil society organisations).

Fourth, we must recognize the limitations of domestic capacity and be realistic. Whether it is a DRC military court, or the prospect of Seif al-Islam Gaddafi standing trial in Libya rather than The Hague, or traditional justice remedies like Rwanda’s Gacaca courts which tried thousands of suspects compared to the limited number tried by the International Criminal Tribunal for Rwanda, further thinking is needed about how to accommodate domestic justice initiatives within the broader complementarity universe. This raises real questions about norms and standards. It is necessary to recognise that in certain (or perhaps even many) cases, unrealistic insistence that domestic justice systems must meet the highest international standards risks making perfection the enemy of the good. At the same time, certain basic principles need always to be maintained if fairness and justice in such trials are to be maintained. While getting this balance right is a delicate exercise, the reality is that in Africa at least, most states do not have the facilities or budgets to run international criminal trials along the lines of the special UN tribunals or the ICC. Just one example to consider is that only one African country has an established witness protection programme (South Africa), with a second (Kenya) well on the way to setting one up. Witness protection, outreach, reparations and victim assistance are beyond the scope of many African justice systems’ capacity and resources. If complementarity is about promoting domestic action, then this limitation must be confronted. Development partners that are serious about complementarity ought to appreciate the need for significant funding, training and capacitation to be directed in support of such domestic efforts.

Fifth, we must honestly confront the reality that such cases are complex in a variety of ways.  It may perhaps be a function of complementarity’s youth (the ICC statute has only been operative for 10 years old) that to date few international crime cases have been pursued in national courts in Africa. In the examples above, while Uganda and DRC have tried suspects for international crimes, only the DRC has completed any cases. From informal discussions with prosecutors and investigators, one reason for the limited number of cases is that they are perceived to be highly complicated and technically quite different from other cases that officials work on. As a result, it takes time and effort to sensitise officials about the relevance of these cases before positive action is taken. Moreover, particularly where universal jurisdiction is involved in asserting a case against a foreign national for crimes committed abroad, sensitivies about foreign relations and a perceived lack of resources and expertise to collect evidence and meaningfully investigate the offences concerned in the foreign state, are cited as reasons for a reluctance to open investigations. This reticence is not entirely unexpected, and in any event not out of kilter with experience within the international tribunals or comparative jurisdictions. The fact is: international criminal justice cases are invariably novel and complex, often implicate political considerations, and take time. As a result, it would be unrealistic to expect many such cases to be dealt with in national courts.  We should accordingly adjust our expectations and be realistic that the same types of political and practical challenges faced by the ICC will be – and are already being – dealt with by domestic prosecution units.

Sixth, in order for ICC complementarity as well as action in respect of non-states parties to have the best chance of success, efforts must be made to bridge the gap between civil society organisations working in the field, and the investigators and prosecutors who tackle these crimes. In South Africa, prosecutors and investigators on the one hand and civil society actors on the other working on cases such as those pertaining to Operation Cast Lead and the Zimbabwe torture docket, have over time developed respect and tolerance for one another. The nature of these cases means that civil society organisations can often provide a much-needed bridge between victims and the state in the search for justice. Given the capacity limitations facing many police and justice departments, the role that CSOs can play as intermediaries should be seen as a potential asset rather than an obstacle. For their part, CSOs that become involved in these cases need to be aware of both the applicable domestic and international legislation and the mandates and capacity of the government agencies they approach with information.

What is more, it is clear that a failure on the part of government to open investigations is not itself beyond scrutiny. As the Zimbabwean torture docket case illustrates, and the example of Kenyan civil society action in respect of al-Bashir confirms, domestic courts are being approached to challenge government inaction. This itself is a new level of complementarity – of civil society requesting, and one branch of government (the judiciary) ordering, that domestic action be taken to close the impunity gap.

CONCLUSION

The ICC is one component of a regime – a network of states that have undertaken to advance international criminal justice alongside or as a complement to the ICC, acting, if you will, as domestic international criminal courts in respect of ICC crimes. In this respect, Anne-Marie Slaughter has pointed out that:

One of the most powerful arguments for the International Criminal Court is not that it will be a global instrument of justice itself – arresting and trying tyrants and torturers worldwide – but that it will be a backstop and trigger for domestic forces for justice and democracy.

If she is right, then we need to take more time focusing on the domestic prosecution of these crimes.  I have briefly explored the unfolding story of a proactive, contextual and positive complementarity in Africa. The examples demonstrate both the promises and difficulties of international criminal justice as exemplified in the ICC’s complementarity regime. Paragraph 6 of the preamble to the Rome Statute declares that ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’.

The very principle of complementarity makes it clear that by domestic investigators and prosecutors acting against international criminals, national courts ensure the international rule of law through a mutually reinforcing and complementary international system of justice. As Professor Antonio Cassese pointed out in 2003, there was a practical basis at Rome for this principle:

It is healthy, it was thought, to leave the vast majority of cases concerning international crimes to national courts, which may properly exercise their jurisdiction based on a link with the case (territoriality, nationality) or even on universality. Among other things, these national courts may have more means available to collect the necessary evidence and to lay their hands on the accused.

Thus, rather than perceiving the ICC as an instrument of global or universal (in)justice disrespectful of particularly African states’ sovereignty, the very premise of complementarity ensures appropriate respect for states by demanding that the ICC defers to their competence and right to investigate international crimes. As Slaughter says, the choice is for a nation to try its own or they will be tried in The Hague. Instead of weakening states and undermining sovereignty, properly understood the ICC regime does quite the opposite: it ‘strengthens the hand of domestic parties seeking such trials, allowing them to wrap themselves in a nationalist mantle’.

What is more, there is an essential supporting role for states to play in pursuing justice in respect of non-states parties. That role, as I have suggested, is acutely relevant where the ICC is unable to exercise jurisdiction. It is at those moments that national justice systems become the courts of last resort – the means by which to close the gaps left by the UN Security Council or the ICC to deliver international criminal justice in pursuit of a common goal.

*Associate Tenant, Doughty Street Chambers London, Barrister, South Africa; Associate Professor, University of KwaZulu-Natal; Senior Research Associate, International Crime in Africa Programme, Institute for Security Studies