The Ethos of “Positive Complementarity”

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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 

I am grateful to Dapo Akande and Mark Kersten for their invitation to contribute to this “symposium” on HRW’s valuable report on the impact of the preliminary examinations (“PE”) of the ICC Office of the Prosecutor (“OTP” or the “Office”) on national justice. I happen to respond to this invitation in-between “complementarity missions” to two countries selected as case studies by HRW, namely Colombia and Guinea. I therefore hope that my modest input will be seen as being informed by first-hand field experience in the practice of the Office’s “positive approach to complementarity.”

In past years, preliminary examinations have been recognized as a core OTP activity. They have thus become the subject of increased attention by multiple stakeholders and a topic of academic research. To an extent, this new scrutiny is a recognition of the relevance and importance of “PE activities” and has been partly triggered by the OTP’s own transparency as demonstrated by its annual reporting and open-door policy. Inevitably, however, increased scrutiny comes with increased criticism, which are always welcome when constructive and well-informed, less so when they are speculative or based on lack of knowledge and understanding of the OTP’s work in practice. In this regard, I am grateful to the HRW team for engaging substantively with the Office over the course of their project and for taking the time to better understand our modus operandi, as well as the challenges, dilemmas and limitations faced by the OTP in its endeavours.

While the HRW report offers a generally balanced and reasonable assessment, I do not share some of their findings. It is nonetheless comforting to read an acknowledgment of positive changes introduced in the OTP practice in the past years, particularly those under Prosecutor Bensouda’s tenure. It appears that the Office’s efforts to explain its policy and activities have borne fruit over time, as also recognized by the contributions of Sanchez and Stahn to this symposium.

A virtue out of a necessity

However, some issues still need to be clarified. First, it is worth recalling that the essential purpose of a preliminary examination is not to encourage national proceedings. It is to enable the ICC Prosecutor to make an informed decision as to whether the statutory criteria for opening an investigation in a given situation are met. If the criteria are met, the Prosecutor has a duty under the Rome Statute to open an investigation. Such a decision is of great significance to the victims and affected communities. It commits the Office and the Court for a number of years, including financially. It is therefore of critical importance – comparable, in these respects, to requesting the pre-trial chambers to issue a warrant of arrest. The majority of the preliminary examinations initiated by the Office since 2003 have been completed (exactly 19 out of 28). Most have resulted in a decision to open an investigation (12). Given the large number of self-referrals by States Parties, very few preliminary examinations ultimately served the purpose of implementing the OTP’s positive approach to complementarity.

Second, “positive complementarity”, as it is called, is first and foremost an ethos that stems from the letter of the Statute, in particular the inescapable fact that State Parties retain the primary responsibility to investigate and prosecute crimes falling under the jurisdiction of the Court which is complementary to national judicial systems. Since its early days, the Office has looked “positively” at the principle of complementarity – a cornerstone of the Rome Statute – and has sought to make the best out of it.

Recognising the primary role of States and at the same time, the inherent (and less costly) impact that a preliminary examination may have in inducing national authorities to fulfil it, the Office has essentially made a virtue out of a necessity. The Office goes to great lengths to remind States of their responsibilities by positively engaging and encouraging them to investigate and prosecute.

Thirdly, when referring to any sort of positive complementarity “policy” or “strategy”, it is important to bear in mind that the Office’s approach in a given situation is essentially dictated by the particular facts on the ground and the disposition of the competent authorities. If the latter carry out, or otherwise state unambiguously their intention to genuinely conduct investigations and prosecutions relating to the potential cases identified, the Office has a duty to respect their primary responsibility and to assess such proceedings. If not, and assuming all other criteria are fulfilled, the Prosecutor has a duty to assume her own responsibility under the Statute. “Positive complementarity” therefore is not a policy choice.

This does not mean, however, that every time State authorities purport to carry out proceedings, the Office will actively encourage them to do so. In some cases, the OTP must first satisfy itself, as in the Iraq/UK situation, that alleged crimes within the jurisdiction of the Court have been committed and/or meet the gravity threshold. In this respect, assessing the Iraq/UK PE through the prism of “positive complementarity” is misleading given that the Office was not pursuing this approach at the ‘material time’. As a general point, the Office is also not blind to the risk that proceedings may be initiated for the mere purpose of shielding perpetrators from the ICC (what could be called, “negative complementarity”).

Where appropriate and as noted in its Policy Paper on preliminary examinations, the Office does seek to encourage genuine national investigations and prosecutions. This has been the Office’s approach in Guinea and Colombia, precisely where HRW seems to consider that the OTP has been most successful. The situation in Guinea is probably the clearest example of where the Office’s patient and persistent involvement made a critical difference. While other actors, including victims’ associations, NGOs, the EU, and the UN, have certainly played an effective and complementary role and continue to do so, it is doubtful whether thirteen (13) individuals, including current and former high-level officials, would have indeed been sent for trial in relation to the 28 September 2009 massacre at the Conakry Stadium without the shadow of the ICC hanging over the situation – a shadow made even more tangible by sixteen successive OTP visits to the country in the context of its preliminary examination activities.

It is regrettable that HRW does not fully appreciate the less palpable but nonetheless significant impact of the OTP’s preliminary examination in Colombia. Some weeks ago, two generals and two colonels of the Colombian armed forces appeared before the newly-established Special Jurisdiction for Peace (“SJP”) to respond to so-called “false positives killings.” Earlier, the FARC leader was summoned before the SJP together with 30 senior fellow members, and asked the victims forgiveness for the multiples crimes committed by his guerrilla group. Admittedly, a number of factors have likely influenced these individuals’ decisions, and time will tell whether the SJP will fulfil its mission of bringing to account both FARC members and State agents responsible for alleged crimes and providing redress to all victims of the armed conflict in Colombia. However, as noted by Sanchez, by focussing narrowly on the investigations of the Colombian Attorney General into false positive cases, HRW appears to have missed the bigger picture – the fairly innovative transitional justice mechanisms directly negotiated by the parties to the armed conflict – and the constructive role that the Office played and continues to play in that process. When the peace negotiations began in 2012, the Office identified a critical opportunity for enhancing accountability in Colombia. Through calibrated initiatives, the Office helped to ensure that the final peace agreement was made compatible with the Rome Statute framework while recalling, at appropriate times, the “potential cases” likely to arise from an ICC investigation into the situation. This, too, constituted a positive and effective approach to complementarity.

As both the situations in Guinea and Colombia demonstrate, however, encouraging national proceedings require painstaking efforts. While it has become commonplace to criticise the length of preliminary examinations, complementarity is in fact the most-important factor having a bearing on their duration, either because the assessment of national proceedings is rendered complex by the information provided (or lack thereof) or because the mechanisms in place require time to actually deliver. “Positive complementarity” conforms to the spirit and letter of the Statute; it generates insignificant expenses for State Parties, particularly in comparison with the average costs of ICC investigations that would otherwise be warranted. Nevertheless, it does take time and energy. “Expediting” the analysis of alleged crimes does not seem appropriate, however, because the identification of potential cases is essential to the decision on whether to open an investigation, and such identification is the basis on which any admissibility assessment can be made and related engagement as well as discussions undertaken with the State concerned. If we think positive complementarity is a valuable approach, we have to accept that the actual benefits will take time to materialise.

Ingredients for Success

The ingredients of success are, however, well-known, and aptly captured by HRW, as are the various tools used by the OTP, and systematically recorded in Levina’s contribution. Progress may be easier to track when the focus is limited to one case (Guinea) as opposed to a wide array of alleged crimes and proceedings (Colombia). Moreover, some situations are clearly more conducive to success than others. From the OTP’s experience, the existence of a genuine political will – which may stem from self-interested considerations – may overcome capacity issues: where there’s a will, there’s a way and also, usually, more partners willing to assist.

On this note, I agree with HRW that the importance of strategic alliances cannot be overstated – but the difficulties and time needed (again) to form such alliances should not be underestimated either. The Office has experienced situations where its calls for accountability at the national level fell on deaf ears – not necessarily from the authorities, but in some cases, civil society actors distrustful of their own national justice systems, or international partners and donors, keen to prioritise, say, elections monitoring, a smooth transition, or political stability generally over any justice and accountability agenda. It does also often happen that within a single government or judicial system, commitment to justice varies greatly from one interlocutor to the other, with all sorts of nuances and variations, from rhetorical to genuine support, subtle to outright obstruction, and polite to hostile indifference. This human factor can make a critical difference too. Like in any peace process, justice has its spoilers. Building on years of experience, including numerous field visits, the Office has learned how to identify them and to adjust its actions accordingly. “Catalysing political will” for the purpose of encouraging accountability may at times require issuing strongly worded statements. But in some instances, providing discrete support to those who navigate among hostile forces may be equally, if not more effective.

In that regard, the OTP, by virtue of its mandate, should not be expected to adopt the advocacy strategies of certain human rights NGO or UN agencies, as effective as they may be for their own purposes. Nor is the role of the Office to provide instructions or directions to national prosecutors or to set deadlines for certain investigative steps to be taken – at best, the Office can and does query the plans and timelines of the competent authorities and ensures the requirements of the Rome Statute are made clear.

Constructive engagement within the confines of the Rome Statute

Ultimately, the rationale of the Office’s approach to complementarity stems from the duty of the Prosecutor to satisfy herself on whether the cases she could investigate are admissible or not. That the fulfilment of this obligation at the same time nurtures a dynamic and potentially constructive relationship with the States concerned has been fully acknowledged and acted upon by the OTP since its early years. But the Prosecutor should not be expected to overstep or overreach the confines of her mandate, nor is she answerable to states’ half-hearted or disingenuous efforts. In all circumstances, however, she can be trusted to act in accordance with the Statute, with full independence and impartiality.

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