Editor’s note: This is part of Just Security’s Symposium on the ICC OTP’s Policy on Complementarity and Cooperation.
The International Criminal Court (ICC) Office of the Prosecutor’s (OTP) policy on complementarity and cooperation that was published in April 2024 signals the OTP’s intentions of charting a new path of engagement with Africa, where the Court has been most active among the world’s regions.
In this new path of engagement with African stakeholders, the OTP’s new policy paper on complementarity and cooperation is centered on two themes: “partnership for accountability” and “responsiveness to the changing reality of the evolving landscape of core international crimes.” Indeed, the ICC Prosecutor, Karim Khan, promised that he would “endeavour to foster cooperation and collaboration wherever possible …and to nurture engagement rather than competition” during his swearing-in ceremony in June 2021.
Granted, Khan’s new policy paper on complementarity and cooperation builds on, and partly departs from, a 2003 “informal expert paper on complementarity.” This earlier paper adopted a two-track model based on partnership and vigilance, which prioritized criminal prosecutions either at the national level, or at the ICC, as the most appropriate mechanism of dealing with atrocities. Khan’s policy paper also deviates from his predecessors’ (Louis Moreno Ocampo and Fatou Bensouda) varied approaches, which similarly reinforced the centrality of either domestic or international prosecutions.
Particularly, Khan adopts a dynamic interpretation of complementarity and cooperation, taking into account the lived realities of the moment: the ICC’s limited capacity and resources to respond to the scale of atrocities committed across the world, States’ sovereignty concerns and pushbacks against an agile ICC, and the appropriateness of alternative frameworks for responding to atrocities. These realities also speak to some of the concerns raised by individual African State Parties to the ICC, the African Group at the Assembly of State Parties (ASP) to the ICC, and civil society, which have previously been ignored or have received little attention in the OTP’s policy on complementarity and public pronouncement. These include the appropriateness of alternative mechanisms for accountability, such as a regional court, traditional justice, reconciliation the sequencing of peace and justice, and the Court’s distance from the “local.” By adopting a dynamic interpretation of complementarity and cooperation, Khan signals the OTP’s responsiveness to these concerns emanating from African States and other stakeholders.
The Policy Papers’ Responsiveness to the Concerns of African Stakeholders
Despite the marginalization of the aforementioned “African perspectives” in the previous informal expert paper on complementarity and public pronouncements, they have clearly informed this round of reform at the ICC. For example, the African Group made recommendations on regional complementarity, exempting sitting heads of state and government from criminal prosecutions, and reforms to the referral system of the United Nations Security Council (UNSC). While reforming the ICC sits within the ambit of the Independent Expert Review Mechanism, the OTP, as the “engine” of the Court, should equally take proactive steps in reform efforts, particularly in the face of increasing challenges to the role of the ICC in a changing world.
Particularly, responsiveness to the concerns of African State Parties to the ICC is important in the OTP’s intentions of charting a new path of engagement with stakeholders in Africa – the Court’s most consequential site of justice since its inception in 2002. Indeed, the new policy paper allows for engagement with a more diverse set of actors than previously imagined in the OTP’s previous two-track approach of “vigilance and partnership.”
In the new approach, the OTP develops the idea of building a community of practice, which signals accommodation and inclusion of a diverse set of actors. This goes beyond the two-track models’ prioritization of capacities to prosecute international crimes at the domestic level, or at the ICC. Unlike the previous OTP policy paper, the new policy paper references “partnership with specialised accountability mechanisms, including specialised courts, hybrid accountability mechanisms, and regional courts,” “deepening engagement between accountability actors across diverse fields” and “harnessing cooperation mechanisms” by “deepening strategic discussions and exploring different venues that may lead to more effective distribution of cases between the international, regional and national levels.”
There are several immediately apparent practical implications to the OTP’s revised approach.
First, the OTP’s new approach of harnessing cooperation with actors beyond the State responds to the African Group’s recommendations on regional complementarity in the ICC’s reform process. As part of the mantra of “African solutions to African problems,” African States have expanded the jurisdiction of the African Court of Justice and Human Rights (ACJHR) to include core international crimes. While there are worrying concerns about the genuineness of African States to bring the African Court into existence, with some commentators describing the idea as a “pipe dream.” The OTP’s accommodative gesture is a wake-up call for African states to ratify the Malabo protocol in order to bring the ACJHR within the remit of the OTP’s envisioned community of practice. Ten years after leaders at an African Union (AU)) summit in Malabo, adopted the protocol on Amendments to the African Court on Human and Peoples’ Rights (ACHPR), only one State has ratified the protocol.
Second, the new policy paper acknowledges transitional justice processes in efforts towards enabling “more integrated and complex responses to situations.” The new policy paper suggests that the “work of the ICC should also be embedded, as far as possible and in partnership with domestic stakeholders, within the full range of transitional justice processes and mechanisms that may be available at the national level.”
While reiterating that “the legal test governing admissibility is framed by reference to whether relevant criminal proceedings have been undertaken (meaning that in principle other, non-criminal proceedings fall outside of the Court’s assessment under article 17 of the Statute),” the OTP suggests that “this does not prevent the Office (and the Court as a whole) as a matter of policy, to seek ways and means of integrating and coordinating its efforts along pathways that reinforce a comprehensive approach to transitional justice.” Again, this comprehensive approach speaks to the African reality of combining judicial and non-judicial methods in dealing with atrocity crimes, and might as well accommodate the recuring peace versus justice conundrum that Khan’s predecessors argued was either a false dichotomy or fell outside the Court’s remit.
Third, in efforts to respond to concerns that the ICC’s justice has been distant from the affected communities and victims, the OTP’s new policy paper on complementarity and cooperation has infused in situ proceedings within the spirit of complementarity. Such an approach, if followed through, is likely to bring the ICC “closer to the ground,” thus enabling direct participation of victims and witnesses in proceedings. More so, traveling to The Hague comes with cost implications and the inconveniences of traveling with African passports to Europe. Previously, the OTP toyed with the idea of holding the trial of Bosco Ntaganda in the Democratic Republic of Congo’s Ituri Province. However, the idea was not followed through, following several excuses such as cost implications and concerns on the security of victims and witnesses. Although the new policy paper does not envisage that full trials will be held at the sites of atrocity commission, it provides for such possibilities. The policy paper states thus: “subject to the decision of the relevant Chamber of the Court,” the OTP “will seek whenever possible and appropriate to hold at least part of the proceedings before the Court in the situation country or, if this is not possible, in the region, to be as close as possible to the affected communities.”
Conclusion: Too Good to be True?
There is much to commend in the OTP’s new policy paper on complementarity and cooperation, especially the accommodation of more diverse actors and perspectives on responding to atrocity crimes, and dynamism in interpreting the two mutually reinforcing principles, which collectively speak to responsiveness to African concerns. Nonetheless, the greatest risk to the success of the new policy paper may be its starting point: the assumption that local, regional, and international actors share in the OTP’s enthusiasm for renewed partnership for accountability and establishment of a community of practice.
Since its inception in 2002 to date, the ICC has had a difficult relationship with States across world regions regarding complementarity and cooperation. For example, the Court has had to contend with duplicitous cooperation, where States cooperate when it is convenient to their domestic interests, and withdraw cooperation in equal measure when their interests are threatened. Compare the recent U.S. sanctions and threats against the ICC’s officials following indictments in the Palestine case with the country’s stated support for the Court’s indictments of Russia’s President Vladmir Putin for his invasion of Ukraine, or African states’ acceptance of the Court’s jurisdiction, and decisions of mass withdrawal from the Court. Complementarity has also been abused in some instances, such as in the case of Kenya, where the state challenged case admissibility on the pretext of domestic legal and constitutional reforms, while also publicly counter-shaming the Court as neo-colonial. Therefore, the policy paper should have spared some thoughts on how to deal with bad faith actors in this renewed and dynamic approach to complementarity and cooperation.
In sum, the OTP’s new policy paper on complementarity and cooperation provides a platform for the ICC’s proactive engagement with stakeholders in Africa, given its dynamic and accommodative approach. The next steps should be the document’s dissemination to the diverse list of stakeholders that the OTP envisages in the community of practice, including those in Africa.