Editor’s note: This is part of Just Security’s Symposium on the ICC OTP’s Policy on Complementarity and Cooperation.
The Office of the Prosecutor’s (OTP) new policy on complementarity and cooperation marks something of a milestone for the International Criminal Court (ICC). The neologism “complementarity,” which does not even appear in the Rome Statute, occupies a special albeit contested space in international criminal law, as evidenced by the hundreds of books, articles, doctoral dissertations, and blog posts dedicated to it. Moreover, in the past 25 years, various policies, informal papers, and strategies at the ICC — in addition to numerous resolutions of the Assembly of States Parties to the ICC — have dealt with complementarity in one way or another. Now, finally, the third Prosecutor, Karim Khan, has laid out a consolidated vision for complementarity, as practiced by his Office, in a single document.
What do we learn from this new policy? The short answer is that most of the policy’s aims and strategies will sound familiar to ICC observers. As expected, the Prosecutor’s overarching goal is to support domestic accountability for serious crimes, which is “complementary” to the work done by his Office and the Court in The Hague. However, it would be misguided to focus on the policy’s familiar elements, repeated invocations of “partnership” and “cooperation” with States, and prematurely dismiss the policy as a public relations spectacle. The document reveals a great deal about Khan’s vision for the Court — in fact, what the policy does not say matters as much as what it does.
Long Overdue and Welcome
A complementarity policy has long been in the works inside the OTP. Building on the first Prosecutor Luis Moreno Ocampo’s various complementarity pronouncements, the second Prosecutor, Fatou Bensouda, had planned to publish such a paper before the end of her nine-year term. However, it ultimately fell to the third Prosecutor to define the OTP’s approach. In doing so, Khan drew on almost three years of practice since his June 2021 inauguration, including several important and surprising decisions, such as the closure of the preliminary examination in Colombia or the hibernation of investigations into U.S. personnel in Afghanistan. Widely debated (see here, here, and here), these and other prosecutorial decisions lie at the heart of Khan’s consolidated vision of complementarity.
At a general level, the policy reflects Khan’s practice-driven and pragmatic approach to engagement with States, which he expressly analogizes to his earlier work as head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD). Readers will spot references to Khan’s trademark expressions, such as “dynamic” complementarity or the idea that the ICC should be viewed not as an “apex” court but an international criminal justice “hub,” which — the OTP hopes — will transform the Office into “a technology-driven, agile, field-centric and victim centred organisation” (para. 6).
Arguably, the sections on “creating a community of practice” (paras. 29-58) and “technology as an accelerant” (paras. 59-71) offer the most concrete and actionable tasks in the policy paper. Welcome, though arguably overdue, are measures like “situation briefs,” which provide “an overview of cases being developed in relation to each situation,” including a “synthesis of the types of evidentiary material,” “key lines of investigation completed” and “where appropriate, indications as to anticipated upcoming priority actions” (para. 46). At the same time, other measures like field investigations and in situ proceedings (holding at least part of the Court’s proceedings in the situation country or in the region to be close to affected communities) are hardly novel ideas and it remains to be seen if Khan will enjoy greater success than Bensouda, who had similar hopes of moving the Court’s top-down infrastructure out of the Hague and into the field.
Conceptual Slippage
While many of the policy’s complementarity measures are familiar (engaging civil society) or commonsensical (coordinating with the U.N.), Khan’s greatest innovation may be so conspicuous as to be almost invisible. Entitled “complementarity and cooperation,” the policy explains how these two “mutually reinforcing principles” can “expand the common ground between all actors” and “reduce the accountability gap that persists with respect to international crimes.” Elsewhere, Khan emphasizes “a fundamental perspective” that these two “core principles” from the Rome Statute are “inextricably linked and mutually dependent” (foreword).
As one reads through the document it becomes clear that the OTP often views the terms “complementarity” and “cooperation” not merely as “mutually reinforcing” or “mutually dependent” but virtually synonymous. To be sure, Khan endorses an old idea, drawn from a 2003 informal expert paper, of two guiding principles of complementarity: “partnership” and “vigilance.” However, no attentive reader will miss that, after its enunciation at the beginning, “vigilance” disappears entirely from the policy only to make three isolated appearances at the very end (paras 124, 145 and 175). As I argue in my recent book, the turn to complementarity qua cooperation at the ICC began well before Khan, but the amalgamation of these two terms seems to have reached its apex under this Prosecutor, who dedicates most of the policy to questions of how to proactively engage and support States, while having much less to say about the flipside of cooperation and partnership: how the OTP intends to exercise vigilance vis-à-vis uncooperative, reluctant, or duplicitous government actors.
No one should assume Khan’s emphasis on cooperation or partnership is mere rhetorical flourish — it matters for at least three reasons. First, framing complementarity mainly as a question of cooperation with States presupposes that the problem to be solved by the ICC is one of insufficient support to and from friendly government actors. As I explain, this increasingly dominant understanding of complementarity as a capacity-building/statebuilding project legitimizes states as “friends” of international criminal justice, while inadvertently shifting the burden of potential failures to “insufficiently supportive” international actors, including the ICC. Second, it suggests a major obstacle to accountability under Bensouda or Moreno Ocampo was their lack of trying hard enough to work with States — a questionable proposition that discounts critiques of the OTP’s close partnerships with governments, for instance in the DRC, Uganda, or Côte d’Ivoire. Third, cooperation as the policy’s conceptual fulcrum determines what types of complementarity measures are considered desirable and viable — in other words, if the overarching goal of complementarity is to foster cooperation, most of what follows is skewed toward that goal.
Complementarity in Practice: What’s In and Out?
To be clear, this is not a critique of the goal of State cooperation, which is indeed necessary for the ICC’s viability (and the policy sensibly endorses various measures of cooperation like joint investigations). However, one should not conflate complementarity with cooperation, which are two distinct aspects of the Rome Statute. Nor is cooperation on its own enough, since territorial States are often reluctant to cooperate in contexts of atrocity crimes. And yet the Prosecutor himself seems reluctant to explain how his Office will engage these reluctant states — i.e. governments not otherwise predisposed to cooperation — prompting some critics to argue the policy offers little more than “practical, common-sense modalities” which would be in place anyway if not for “the lack [of] international and domestic political will.”
The policy does indeed fall short on addressing issues arising from what is conventionally described as States’ political will. To be sure, the OTP recognizes that “in some situations there may be no ready partner at the national level, whether due to the unwillingness or inability of the State” and that “relevant domestic counterparts may be hostile towards accountability efforts” (para. 8, see also para. 140). However, the policy has little to say about such situations beyond implausible suggestions like “partnership and vigilance have often been treated in tension and perceived as in competition, instead of being viewed as mutually reinforcing” (para. 3) or vague assertions that “the Office will always endeavour to act consistently across all situations by seeking out and inviting opportunities for engagement at every turn” (para. 8).
This vagueness matters for at least three reasons. First, the policy revolves around the misleadingly simple binary of “partnership” versus “vigilance,” implying that the OTP will either cooperate with States to support domestic accountability or, conversely, intervene and bring its own international prosecutions in accordance with the legal admissibility test under Article 17. However, this binary reading of complementarity obscures the most important dimension of the OTP’s engagement with States, namely the grey area of what I call “iterative”, push-pull interactions where international pressure can influence domestic prosecutorial priorities or strengthen local civil society demands for justice (for this conceptualization of ICC-State interactions, see this diagram). Yet, while Ithe OTP’s vigilance function probably matters most in relation to cooperative States, the policy avoids precisely the difficult questions of how Khan will apply different forms of pressure to otherwise cooperative government counterparts. In one of the policy’s few paragraphs to address this gray area of complementarity, the OTP recognizes it must exercise caution vis-à-vis states, lest its support for domestic prosecutions, e.g. by providing evidence or technical expertise, “lead to a violation of a defendant’s internationally recognised human rights” or “risk validating national proceedings” (paras. 170 and 172). Yet the OTP conspicuously does not say how it will avoid such scenarios under the ICC’s flawed human rights-averse complementarity jurisprudence (for details on this dilemma, see here).
Second, the policy is laconic about what complementarity entails from a procedural perspective. While complementarity became the focus of preliminary examinations under Ocampo and especially Bensouda, Khan understands complementarity more holistically to include investigations through to situation completion (para. 142). A holistic approach would be commendable in principle, but the policy’s lack of detail on how the OTP will engage States in the different phases of the prosecutorial process appears to echo the Independent Expert Review’s critique of Bensouda’s approach to preliminary examinations as a form of “naming and shaming,” “human rights monitoring,” or a “watchdog role” (here, paras. 720 and 724). Notwithstanding sporadic references to preliminary examinations (or situation completion), the policy remains vague on how the OTP might approach each phase depending on the levels of cooperation that may or may not be forthcoming from national counterparts.
Third, the policy’s most questionable element must be its avowal that it “does not seek to set out a list of factors to guide when and where [complementarity and cooperation] might be implemented” and that “focus instead is given to developing practice” (para. 120). On the issue of practice, the document describes in great detail the OTP’s actions in the past three years in Venezuela, Colombia, Guinea, Ukraine, Central African Republic, and the DRC (paras. 121-137). This part of the document, which is focused on past achievements, sits uneasily with the whole idea of developing a forward-looking policy, especially since its “summary of learning” (paras 138-143) draws few lessons from these cases. Instead, “[a]s experience and learning build over time,” the OTP informs us, “it is hoped that these and other developments can in turn stimulate fresh thinking on future avenues for practice” (para. 120).
The Way Forward: “Trust Me, I Know What I Am Doing”
What should ICC observers make of Khan’s practice-driven complementarity policy? For starters, one should recognize that Khan has made significant innovations to the OTP’s practice in just three years, including closing long-standing preliminary examinations, signing memoranda of understanding, and developing “work plans” with State authorities. The policy does indeed develop some “fresh thinking” like the Complementarity and Cooperation Forum (paras. 38-45). However, it is hard to avoid the impression that on the fundamental question of how the Prosecutor should manage relationships with States where crimes occurred or are occurring, Khan’s preliminary answer is some version of “trust me, I know what I am doing.”
Reflecting Khan’s pragmatic understanding of how international justice can (and cannot) work, the policy enshrines a State-centric and conciliatory vision of the ICC working hand-in-hand with governments. Exhibiting considerable conceptual slippage, the policy muddles distinctions between complementarity and cooperation, while the term “complementarity” is used interchangeably with or without the qualifiers “positive” (paras 88 and 177) or “dynamic” (preamble, paras 55, 88, 91). Absent entirely is any imagery of the ICC qua Sword of Damocles hanging over States, favoured by Bensouda (at 507); in its place, we find a Prosecutor emphasizing partnership, and assuring States that the ICC is not “in the regime change business,” echoing Khan’s experiences from Kenya. Focused on States, the policy also lacks specificity about engaging victims or civil society. Long-standing demands for public benchmarking are not addressed while his predecessor’s innovations like the preliminary examination policy’s emphasis on early warning and transparent dialogue with States are sidelined (it is no coincidence this policy was recently placed “under revision”).
All this reinforces the perception that Khan’s new vision of complementarity is driven mainly by pragmatism rather than principle. Its two-track approach is best summarized as: on one hand, a conciliatory stance toward States geared toward promoting cooperation; on the other, the hardest dilemmas of managing tense relations with States are left to future developments, meaning Khan’s unfettered discretion to develop practice. While the Prosecutor has proved himself an able diplomat in the first three years of his mandate, we should recognize that prioritizing outreach to States is a gamble, and it remains to be seen whether this approach can deliver results that will satisfy the ICC’s various constituencies. While the 2024 complementarity policy is an important achievement, it matters as much for what it says as what it does not.