By Chiazam Onyenso, John Velazquez, and Henrietta MacPepple
The initial birth of the International Criminal Court engendered faith in the potential capacity of a formidable international criminal justice system. Its central objectives to enact justice for crimes against humanity, victims of genocide, and also combat impunity for perpetrators have remained unaltered. Yet, also at its creation, doubt in the ICC surfaced from uncertainty in its autonomy and where the legitimacy of the court actually lies. Legitimacy is referenced in the ICC’s ability to exact legal fairness as an international institution and apply its jurisdiction without violating national sovereignty. While there exists a number of reasons that are likewise obstacles to the court’s effectiveness, the authority and legitimacy of the ICC lies in question to select states within the international sphere.
The failure of the court to broaden the scope of its investigations, trials and prosecutions away from its majority of African cases, enforce its verdicts and hold states accountable has caused the legitimacy of the ICC to waver. In order to eschew claims that the ICC acts against core precepts of national sovereignty, and procure more concrete support for the conduct of its trials, the court is in need of a strategy that will accredit the capacity of nations to internalize prosecutions and trials. This strategy we propose of proactive complementarity posits that it is the responsibility of the ICC to enhance the ability of states to adopt trial practices that reflect those of the court without its own direct controversial interference. Proactive complementarity requires the internalization of various concepts of morality that determine justice be established by domestic courts so as to minimize claims that the ICC undercuts the legitimacy of national jurisdictions and sovereignty. The strategy also diminishes cause for national reluctance to abide to the authority of the ICC and also reinforces the capacity of the nations to adequately address crimes against humanity on their own with additional support from the international justice court system.
The overall benefit of proactive complementarity is the strengthening of national institutional capacity to proceed with trials dealing with crimes against humanity, genocide, and war crimes. This is highly desirable since the essence of the ICC is that it is a court of last resort; it was never meant to handle an enormous caseload, rather, it is supposed to proceed when and if a state is unable or unwilling to try the case themselves, for whatever reason. One requirement for this strengthening is the penetration of international norms in the domestic legal framework. Achieving this would be a positive boost to the ICC’s legitimacy, as it is the very embodiment of such norms. On another note, although not every ICC case is an African one, historically the majority of cases indeed have been, thus creating the sentiment that the ICC institution itself is but a new form of Western European control/neo-colonialism. With national courts (in this case African) able to try cases on their own with ICC guidance, this negative notion of the ICC would be dispelled, more individuals would be put on trial, and the positive development itself would likely attract other African states to become signatories to the Rome Statute itself.
The cost of achieving positive complementarity would be best measured in the amount of time and resources lost. Internalizing international legal norms in states where high skepticism and distrust exist can take long periods of time. Building up local judicial capacity and training professionals likewise takes more time and money which some states may be hard pressed to find. Additionally, while achieving positive complementarity in regions (predominantly African) with poorly equipped judicial systems is a significant improvement and necessity, the ICC’s legitimacy still suffers from a lack of U.S. ratification. Nevertheless, this strategy is an important step that will give a strong boost to its perceived legitimacy and consequently its effectiveness.
Proactive complementarity with a focus on rebuilding and developing judicial institutions and resources is vital in order to help strengthen the ICC’s legitimacy. By encouraging mutual exchange of ideas with domestic courts, the ICC can build domestic capacity by working collaboratively with national courts to establish institutes and centers that strengthen the domestic judiciary. Multi-disciplined experts should be consulted to understand the local terrain, advocacy and outreach groups should be well-informed of the improvements being made to the judicial system and institutions should hold local judiciary accountable to ensure fair trials and judgments are made.
The ICC should work with national and regional governance bodies to increase local judicial resources. In cases of states that are not able to prosecute their own cases domestically, the ICC could share legal resources, analysis and intelligence with domestic governments or judiciaries. In the event that courts are unable to prosecute because it lacks legal resources and tools, the ICC may provide access to publicly available information.
In order to adequately maintain sovereignty, the ICC must stress its status as a court of last resort whose role is not to supplant the authority of the domestic judiciary but to be supportive and complementary in the prosecution of serious cases. The ICC should rely on the principles set in the Rome Statute to convince states to prosecute crimes domestically. This communication would be based on the obligations that domestic courts have to prosecute international crimes. Before interceding, the ICC should attempt to motivate domestic courts to undertake its own prosecution and investigation and then only if these efforts are unsuccessful, pursue its own prosecution and investigation.