Re-Thinking the Principle of Complementarity in the Rome Statute: A Short Note

By D.R.Ruhweza[1]

The principle of complimentarity is one of the ways in which the ICC determines admissibility of cases before it.[2] In essence, the Court is not supposed to proceed if the case ‘is being addressed by the domestic jurisdiction.’’[3]  In this regard, the former ICC prosecutor Ocampo noted that “[R]ather than competing with national systems for jurisdiction, we will encourage national proceedings wherever possible.”[4]

Whereas the purpose of complementarity is to help fight against impunity by working closely with national jurisdictions, it is very difficult to answer with certainty that such a purpose has achieved in the situations before the Court to date. The situations before the Court have shown that both the accused and the accuser are culpable in one way or another. It is arguably one of the reasons why the practice of soliciting for self referrals is inherently problematic. In many of these conflicts, there is real difficulty in avoiding victor’s justice or in ignoring the hand of foreign players. [5]  

Whereas it is appreciated that the scope of international criminal law is limited to specific crimes, if at all the OTP is to achieve justice for victims, it would do well to investigate the ‘thing behind the thing.’ The reluctance to investigate the role played by the Government of Uganda, as well as the problems which arose from the recently concluded trials of Thomas Lubanga and Charles Taylor[6] as well as the current trial of Jean Pierre Bemba are very crucial examples here.

Referring to the situation in Uganda, former ICC Prosecutor Ocampo opined that Joseph Kony committed most of the crimes in northern Uganda.  However, the Appeals Chamber in Lubanga  found this conditionality insignificant.[7]  The Appeals chamber held that the requirement for gravity in the form of ‘a systematic or large scale’ conduct which the Pre-Trial Chamber labelled ‘social alarm’ blurred the distinction between the jurisdictional requirements for war crimes and crimes against humanity.’ [8] Court instead restated that ‘the subjective criterion of social alarm therefore is not a consideration that is necessarily appropriate for the determination of the admissibility of a case.’[9]  Therefore, the OTP cannot rely solely on the ground of gravity as the reason for not engaging in positive complementarity. It can therefore be argued that many of the criticisms against Ocampo’s work would actually be dealt a natural blow if he had instead pursued this policy of positive complementarity because it would lessen the number of cases which the Court had to deal with and allow it to only concentrate on those situations (like Kenya) where the national jurisdictions had genuinely failed to proceed not merely because they said so.

It is also important to notice that the victor of a conflict like Ivory Coast or Libya (with the exception of Kenya) tends to take the upper hand in determining its own form of justice which normally involves the removal of the opponent from the territory of conflict through the self referral system. The resultant effect, as the current situation in Cote d’Ivoire shows, is that any attempts for transitional justice and reconciliation are curtailed, in effect keeping the embers burning for the next violent uprising. Thus, the prosecution strategy should be one that captures these nuances and lays the ground for ensuring that transitional justice is also promoted. This can only be done with the OTP pushing back to its original position on positive complementarity.[10]  That would be the appropriate practice of complementarity envisaged by the drafters of the Statute.  

The above probably begs the question - How   will positive complimentarity encourage the state that is in power to bring its self to account? Once there are systems in place within the jurisdiction of the countries, gravity can easily be determined and or assessed. It makes it more and more difficult for one sided 'justice' to occur and as Uganda often says, its errant soldiers are brought to book through its own laws and procedures. This is the similar situation in the USA which says it does not need the intervention of the ICC because it has its own mechanisms of dealing with impunity. Similarly, Libya has indicated that it is able to try both Gaddafi's son Saif al-Islam as well as Muammar Gaddafi's former spy chief Abdullah al-Senussi.[11] The ICC should be seen to encourage more of these attempts by the States Parties and not discourage them.

............................

---

[1] PHD Candidate at University of Kent at Canterbury, Associate Lecturer School of Law Makerere University ., Attorney at Law, Uganda. http://uk.linkedin.com/in/danielruhweza

[2] The other principle is gravity and the third is  ne bis in idem which seeks to protect a person from being tried before the ICC for conduct which has already been tried by the Court itself or by other courts in previous proceedings

[3]Complementarity is laid down in paragraph 10 of the Preamble as well as in Article 1, 15, 17, 18 and 19 of the Statute.

[4] Luis Moreno-Ocampo, Prosecutor of the ICC, Statement of the Prosecutor to the Diplomatic Corps (Feb. 12, 2004), available at http://www.icccpi.int/library/organs/otp/LOM_20040212_En.pdf

[5]  Lubanga (ICC-01/04-01/06-8, Decision on the Prosecutor’s Application for a Warrant of Arrest, 10 February 2006, paras. 42 -60. See ‘First Verdict at the International Criminal Court: The case of the Prosecutor vs. Thomas Lubanga Dyilo.,  Questions and Answers., February 2012 available at

I.http://www.hrw.org/sites/default/files/related_material/2012_DRC_Lubanga.pdf last accessed June 17, 2012. This was the case of Lubanga who was given sanctuary by Uganda, the case of Bemba aiding the conflict in CAR, the case of Bashir and Gaddaffi aiding the conflicts in Uganda and CAR respectively.

[6] For the Charles Taylor Trial, see http://www.charlestaylortrial.org/ last accessed June 17, 2012. For the Jean Pierre Bemba trial see http://www.bembatrial.org/ last accessed June 17, 2012

[7]  Lubanga (ICC-01/04-01/06-8, Decision on the Prosecutor’s Application for a Warrant of Arrest, 10 February 2006, paras. 42 -60.

[8] Situation in the Democratic Republic of Congo (ICC -01/04), Judgement on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled ‘Decision on the Prosecutor’s Application for Warrant of Arrest, Article 58’, 13 July 2006, para. 70.

[9]  Id, para. 72

[10] This is where national governments are encouraged to undertake their own investigations and prosecutions of crimes within the Court’s jurisdiction. See Christopher Keith Hall., ‘The Powers and Role of the Prosecutor of the International Criminal Court in the Global Fight Against Impunity, 17 Leiden J. INT’L L. 121, 135-36 (2004). Cited in W. W. Burke-White, ‘Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice’ (2008) 49 Harvard International Law Journal  54

[11] See Hadeel Al Shalchi, ‘Libya says can try Gaddafi spy chief’ available at http://www.iol.co.za/news/africa/libya-says-can-try-gaddafi-spy-chief-1.1469079 last accessed February 15, 2013. See also Vivienne Walt, ‘Why Libya—and Not The Hague—Will Try Gaddafi’s Son’, available at http://world.time.com/2012/10/10/why-libya-and-not-the-hague-will-try-gaddafis-son/#ixzz2KxW0nhoU last accessed February 15, 2013.