A Complementarity Toolkit?

Editor’s Note: This post is part of our Joint Symposium with Justice in Conflict on Human Rights Watch’s Report, Pressure Point: The ICC’s Impact on National Justice 

In the long-term, bolstering national proceedings is crucial in the fight against impunity for the most serious crimes, and is fundamental to hopes for the ICC’s broad impact. It can also restore trust in national institutions, which have been severely damaged or have failed completely in a context of armed conflict or systematic repression.

A recent Human Rights Watch report provides a detailed examination of how the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) can trigger domestic investigations and prosecutions into serious crimes, looking at Colombia, Georgia, Guinea and the United Kingdom as case studies. The report discusses a range of practical actions that the OTP can take as part of its complementarity activities during the admissibility phase of its analysis, and how these actions have played out in various contexts.

In and of itself, the report is a fascinating and useful overview of the chronology of the OTPs engagement in Colombia, Georgia, Guinea and the United Kingdom, with insights and analysis from individuals who played a role in each situation – insider accounts from civil society activists, officials from national prosecuting and judicial authorities, diplomats, and OTP staff.

One of the most enlightening elements that comes out from Human Rights Watch’s research is the detailed examples of various actions that the OTP has taken in different situations. Drawing them out and compiling them, it is striking that they comprise a coherent and practicable toolkit of complementarity measures. They also fall squarely in line with the steps that national prosecutors have to take to retain control over proceedings in their countries. Broadly speaking, they fall into five steps —

Step 1: Support existing political will

If there has been a policy decision by the leadership of the prosecuting authority, such as the Attorney General, to initiate investigations into war crimes and crimes against humanity, the OTP can assist decision making through informing the mapping of available information. Within the limits of confidentiality, the OTP can share information and its analysis on the scope of crimes committed, their legal qualification, analysis of the contextual elements of crimes against humanity, or classification of armed conflict.

Given that ICC judges have defined potential cases as comprising:

“(i) groups of persons involved that are likely to be the focus of an investigation for the purpose of shaping the future case(s); and

(ii) the crimes within the jurisdiction of the Court allegedly committed during the incidents that are likely to be the focus of an investigation for the purpose of shaping the future case(s);”

the OTP can:

• Share its analysis of potential cases with domestic prosecution authorities and domestic criminal justice lawyers working on related cases;
• Disseminate information derived from the OTP’s analysis to civil society to strengthen their advocacy and legal action and to ensure that a wide range of domestic actors can monitor progress or lack thereof down the line.

Step 2: If there is no political will, catalyse it

We know, however, that in most cases, political will is rare and even where authorities initiate investigations, prosecutions are limited. Firm and steady public pressure is required to keep up or incrementally catalyse political will. To keep the need for investigations and prosecutions into serious crimes on the agenda, the OTP can:

• Engage with local media and conduct outreach to civil society in-country to focus public debate on the need for accountability;
• Issue official requests to the judicial and prosecuting authorities requesting information regarding actions taken to sustain pressure on domestic authorities to show results in domestic proceedings;
• Press government officials to provide more information on investigations to domestic civil society and the public; and
• Conduct diplomatic outreach to States and organizations that exert particular influence on situation countries to highlight the importance of including accountability in political dialogue with domestic authorities.

Step 3: Influence prosecutorial policy

After mapping the scope of crimes, a domestic prosecution authority will have to identify which areas and crimes to prioritise in subsequent investigations, including lines of inquiry, types of cases and potential groups of suspects. It is at this stage that it is critical for national prosecutors to identify and prioritise the gravest crimes – war crimes, crimes against humanity, and genocide – and cases that address those bearing the greatest responsibility. At this stage, the OTP can take two types of measures:

• Initiate a dialogue with national prosecution authorities on the development of prosecutorial strategies;
• Make strategic interventions on any legislation that may hinder accountability efforts or promote impunity.

The OTP undertook both such actions in the course of its preliminary examination on Colombia. The OTP engaged in a dialogue with the Attorney General of Colombia on his development of an Executive Directive published in 2012, which set out his criteria for prioritizing certain kinds of investigations and the basis for developing them. The OTP then issued written interventions on subsequent legislation that would have hindered accountability, thereby both inspiring the prosecutorial policy to cover Rome Statute crimes and high-level perpetrators, and ensuring that this did not absolve the Colombian Government of their responsibility to pursue accountability for low and mid-level perpetrators.

Step 4: Build capacity

National prosecuting authorities will need to have a workforce capable of carrying out investigations and prosecutions, with specific expertise in international crimes. As I have previously discussed on this blog, an absence of capacity in this area often forestalls national accountability efforts. To address this capacity shortcoming, the OTP can:

• Disseminate information to international donors to allow for them to fund and initiate activities that support positive complementarity, such as programs training prosecutors and judges in international criminal law, evidence and procedure;
• Inform Rule of Law programmatic activities carried out by international actors by identifying weaknesses in domestic proceedings to prompt increased assistance;
• Broker capacity-building assistance to victims’ associations to facilitate their participation as civil parties in domestic investigations; and
• Encourage assistance from dedicated UN and international thematic mandate-holders, such as the Team of Experts for Rule of Law/Sexual Violence in Conflict in the UN Office of the Special Representative on Sexual Violence in Conflict, which the OTP facilitated in Guinea.

Step 5: Monitor progress

Investigations and prosecutions into international crimes are often complex. To aid in ensuring that the implementation of a prosecutorial strategy can be monitored, the OTP can:

• Identify specific benchmarks with prosecuting authorities, as the OTP did in Guinea, against which incremental progress can be measured;
• Identify a timeline for national authorities to act to conduct domestic prosecutions in order to avoid an ICC intervention, as the OTP did in Kenya.

These steps and their practical implementation will depend on the opportunities and constraints in each specific situation. In some situations, such as in Myanmar, where there is no realistic prospect of effective national prosecutions, the OTP’s preliminary examination is unlikely to trigger domestic action. To fill this gap, an international mechanism has been set up to preserve evidence until national institutions become sufficiently independent and robust, at which time its availability could tip the scales to ensure a reckoning with the past at the domestic level.

However, in other situations where there is room for complementarity, this toolkit may help the Office of the Prosecutor of the ICC to better leverage its influence and engage with partners to encourage national action.