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) is not a world court. Its membership does not include some of the most powerful States: United States, China, India. Still, 124 States have ratified the Rome Statute of the ICC and have accepted the Court’s power to investigate and prosecute serious violations of international law. The arrest warrants issued against Russia’s President Vladimir Putin and Commissioner of Children’s Rights Maria Lvova-Belova as well as the Prosecutor’s requests for arrest warrants in the situation in Palestine have raised the ICC’s profile as a player on the international scene. The Court is, however, an institution with limited (financial) means, requiring it to be selective in which cases it takes on.
In a recent policy shift the Office of the Prosecutor (OTP) of the ICC reprioritized its case load. ICC Prosecutor Karim Khan wants the Court to be a justice hub, working with national authorities to help ensure justice is done — as much a possible — at the national level and stays at the national level. NGOs have voiced concerns over this policy shift and feel the ICC is letting down victims who expect the ICC to step in and deliver justice. In this article, I link the new ICC policy to the exercise of universal jurisdiction by domestic and regional courts. I argue that the shift from apex court to justice hub is the right and logical next step for the ICC. It prompts national authorities to step up accountability efforts based on universal jurisdiction (UJ), allowing the ICC to assume the role of international court dealing with major war criminals. I conclude by arguing that domestic justice efforts through UJ should be coordinated and streamlined by developing an inter-state system of complementarity and a UJ allocation system.
1. A New Approach
On April 25, the OTP launched a report on its new approach to prosecuting international crimes. In the preface, the Prosecutor mentions two reasons for this shift: first, his experience as Head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) where he worked closely with the national authorities in Iraq in support of their accountability efforts; and, second, the reality that domestic authorities are increasingly asserting jurisdiction over international crimes.
The OTP will pursue complementarity efforts by doing two things at the same time: supporting national authorities in their accountability efforts while executing the OTP’s own mandate by investigating and prosecuting cases itself. This dual policy of partnership and vigilance entails: (i) assisting national jurisdictions in their domestic proceedings, (ii) sharing information, knowledge, and best practices, (iii) defining common operational standards on areas of common interest, (iv) seconding experts, and (v) engaging with local, regional, and international partners.
2. From Apex Court to Justice Hub
The new prosecutorial policy has been met with some disquiet by civil society organizations. They point to the precariously fine balance between partnership and vigilance. Maria Elena Vignoli and Danya Chaikel, in their article for this symposium, for example, caution that an imbalanced application of the policy could result in excessive focus on support for and deference to some national authorities. This in turn could leave victims without credible avenues for justice.
The International Federation for Human Rights (FIDH) points out that since Khan took office in 2021, he has closed four investigations (Georgia, Central African Republic II, Kenya, Uganda) and three preliminary investigations (Colombia, Venezuela, Guinea) to prioritize support to national authorities. Vignoli and Chakyl emphasize the importance of transparency and the need to develop clear criteria for the making of such decisions. Victims and the international criminal justice community should be able to understand how and why these decisions are made in certain situations and not others. Transparency and clear criteria will also enhance the legitimacy of the OTP’s prosecutorial decision-making and avoid the perception of double standards.
This call for transparency, suggests the ICC has insufficiently explained how it views itself in this new era; what role and task it has in the broader international criminal justice ecosystem. In launching the policy on complementarity and cooperation, Khan stated that “rather than viewing itself as the apex of the international criminal justice movement, my Office must embed itself as a hub at the centre of our collective accountability efforts.” This mission was already declared in the OTP’s Strategic Plan 2023-2025, which indicated the OTP would transform itself into a “technology-driven, agile, field-centric and victim centred organization, capable of operating at pace of relevance.” (para. 15).
But when does the ICC defer to national and regional accountability mechanisms? More to the point: when does the Court see a role for itself as “sole adjudicator”? Confronted with an increase in domestic trials and — to quote Devika Hovell and Mara Malagodi — a “polycentric” international criminal justice system of overlapping jurisdictions, the question of the ICC’s raison d’être is suddenly pertinent. The OTP’s issuance of arrest warrants against Russia’s Putin and Lvova-Belova, its requests for arrest warrants against Israel’s Netanyahu and Gallant and three Hamas leaders, and the ICC Appeals Chamber’s decision rejecting Head of State immunity in Jordan’s appeal in the Al-Bashir case all point toward a Court that sees itself as dealing primarily with “major war criminals.” While Ward Ferdinandusse and Alex Whiting have argued in favor of the ICC focusing on “little fish cases,” the OTP’s new complementarity policy points in the opposite direction.
Fulfilling a broader mandate, i.e. prosecuting mid-level or low-level perpetrators, can happen under this new policy when the OTP decides to select cases in situations where domestic or regional justice systems are unable to prosecute. The ICC would then function as a substitute court, analogous to the Rwanda Tribunal or the Special Court for Sierra Leone, stepping into a legal void. The unwilling limb of the complementarity test becomes (even) more a system of leverage; of putting pressure on domestic justice systems to end impunity. Indeed, the HRW suggests the OTP use the partnership-approach as “unique leverage” to advance credible and genuine national proceedings.
3. Burden-Sharing and Inter-State Complementarity
The increased activity at State and regional levels and the OTP’s wish to engage with such activity affects the system of complementarity, which is increasingly a principle of burden-sharing rather than admissibility. Margaret deGuzman makes clear that complementarity should be guided by a principle of burden-sharing. Complementarity is more than a rule of subsidiarity where there is always a court that will exercise jurisdiction. The idea of burden-sharing comes with a hierarchy: some courts are better suited than others to exercise UJ. In Guzman’s view proximity is an important factor; national courts and regional accountability systems as the most affected State may be given priority over ICC adjudication.
De Guzman’s view on complementarity and burden-sharing between the ICC and States Parties, can be a blueprint for a of system burden-sharing amongst UJ States – members and non-members of the ICC. I envisage a system of inter-state complementarity and some form of preferential or hierarchical burden-sharing, where UJ is exercised by the most appropriate accountability system; the state with the strongest link. This goes against UJ’s absolute nature as a “free for all” form of jurisdiction where there is no hierarchy amongst courts to exercise UJ. In practice, however, there is widespread acceptance of a rule requiring a sufficient link via presence, residence, or nationality. This rule may be termed “conditional UJ”; some States are better suited to exercise UJ than others. The rationale for such a rule includes considerations of judicial economy and comity-related concerns, including political or diplomatic considerations. The idea of conditional UJ was described in the joint separate opinion of Judges Higgins, Kooijmans and Buergenthal in the Arrest Warrant case before the International Court of Justice as a sensible way to avoid the chaos of unbridled UJ claims (para. 59). Further support for the notion can be found in the UN Darfur Report, which suggested that, “before initiating criminal proceedings [the forum State seeking to exercise UJ] should request the territorial State … or the State of active nationality … whether it is willing to institute proceedings against that person? (para. 16).
4. UJ Allocation
Inter-state complementarity ensures that core international crimes are investigated and prosecuted at national/State level. It refers to the complementary prosecutorial role played by what Cedric Ryngaert has termed “bystander States” (p. 165), i.e. States that do not necessarily have a strong nexus with an international crime situation but that exercise UJ in the fight against impunity and to deny safe haven for perpetrators of core international crimes.
Should we not look at bystander States critically? Is it desirable that one or a handful of States (often those with broad UJ clauses) act as the policemen of the world? The OTP’s new approach to complementarity can prompt us to think about this differently; to think about a system of UJ allocation that calls on the State with the strongest jurisdictional nexus to exercise UJ. UJ allocation would be a system where the bystander State defers to the “designated State” via a system of coordination and collaboration.
How to determine which State is the designated State? We could use the same principles considered by the ICC in determining its own jurisdiction— via a nexus to territory (alleged perpetrator is present in the UJ State) or nationality (victims of crimes are nationals of the UJ State)—and in conducting the complementarity analysis i.e. the genuineness of proceedings.
Another way to designate UJ would be via modeling it on subsidiarity in transnational criminal law, the area of law that deals with inter-state cooperation in criminal matters (e.g. extradition, mutual legal assistance). Fannie Lafontaine proposes to draw on extradition law as the rationale behind the idea of subsidiarity (p. 1286-1292). This also points to the importance of a nexus via territory or nationality but from the perspective of the accused person, e.g. their right to be present at trial. Ergo UJ would be allocated to the States with a strong territorial or nationality link provided it does not violate a defendant’s rights (e.g. right to family life). Laura Burens is critical of this approach because extradition law, while it may play a role in determining subsidiarity, is primarily focused on the protection of fundamental rights (p. 87-89). She argues that, in line with Article 17 Rome Statute, jurisdictional conflicts should be resolved from the perspective of the interests of State sovereignty.
Related to transnational criminal law but so far unexplored is subsidiarity and UJ allocation via the principle of de jus non evocando, also referred to as the “proper administration of justice.” As a designation principle it adds a new, normative component to a designation system. The principle starts with the defendant. It grants them the right to be tried by their “natural adjudicator.” Albertus (Bert) Swart was one of the first to refer to this principle as a fundamental right, part of the right to a fair trial and premised on natural justice. He argued that the proper administration of justice does not necessarily correlate with a strong jurisdictional link based on territory or nationality. A transfer of criminal proceedings to the territory where the crime was committed can be against the interest of the defendant when for instance their family lives elsewhere. That designation of jurisdiction can be based on resocialisation is an established view (see, for example, Article 8(f) of the European Convention on the Transfer of Criminal Proceedings). The Hague Llubjana Treaty also refers to the administration of justice principle in Article 48:
States Parties may consider the possibility of transferring proceedings to one another for the prosecution of a crime to which they apply this Convention in cases where such transfer is considered to be in the interests of the proper administration of justice, in particular in cases where several jurisdictions are involved.
For any system of UJ allocation to work, there must be some alignment of prosecutorial decision-making. Devika Hovell (see Annex) and Mara Malagodi (p. 18) urge States to work together to determine conditions for the exercise of UJ. They mention the following criteria to be weighed in the balance: (1) international consensus as to the seriousness of the crime; (2) desire by victims or victim organizations for access to justice; (3) risk that the alleged offenses would not otherwise be prosecuted; (4) location of the accused; (5) effective administration of justice, given quantity and quality of available witnesses and evidence; (6) vulnerability and security of victims and witnesses; (7) impact on standing, reputation and diplomatic relations of the prosecuting State; and (8) affordability of cost of prosecution. While States will always have a degree of discretion as to what and who they prosecute, they are not entirely free in deciding whether or not to take on a UJ case.
5. Coordination
UJ allocation requires coordination. Commentators have suggested different models for this. Laura Burens sees a coordinating role for the ICC Assembly of Parties or the ICC Prosecutor (p. 86, 96). Xavier Philippe (p. 397), already in 2006, proposed a coordinating role for regional organizations. This turned out to be a visionary insight.
The war in Ukraine provided an opportunity for setting up a system of regional coordination of UJ via the EU. As Matteo Colorio, in a conference paper on file with the author, points out: the Rome Statute’s system of “reverse cooperation” in Article 93(10) enables the ICC and UJ States to work together and coordinate accountability efforts in Ukraine. On March 28, 2022, Eurojust set up a Joint Investigation Team (JIT) to support EU member States carrying out investigations and exercising UJ over crimes committed in Ukraine. This JIT was joined by the ICC on 25 April 2022. A few weeks later, Eurojust obtained the competence to preserve, analyze and store evidence related to core international crimes, enabling the exchange of such evidence with competent national authorities and the ICC. This led to the establishment of the Core International Crimes Evidence Database (‘CICED’). These novel forms of cooperation have effectively given the ICC the power of law enforcement (Ryngaert, para III; Caianiello, p. 232, n. 38).
Eurojust has assumed a leading role in coordination and cooperation between UJ States, including non-EU countries, and the ICC. An important platform is its Genocide Network where national contact points, specialized prosecutors, and investigators meet regularly to share experiences and expertise. The EU system of cooperation and the ICC complementarity system come closest to a framework where burden-sharing and coordination can happen. There is no reason why a similar regional system cannot be established in Africa, coordinated by the African Court of Justice and Human Rights (ACJHR), or in the Pacific region where the Justice and Accountability Network Australia (JANA) aims to adapt the Genocide Network as a model in the local context. The Independent Investigative Mechanism for Myanmar (IIMM) and the International Impartial and Independent Mechanism (IIIM) dealing with crimes in Syria could equally function as catalysts for alignment and coordination.
6. New Beginnings
The policy launch on complementarity is a new beginning for the ICC, States parties, and the broader international community. With the approach of partnership, the logical next step is setting up a system of burden-sharing; between the ICC and States parties but also beyond that. National prosecutorial authorities are urged to think about a system of UJ allocation and coordination.
The idea of a designated State (at the cost of a bystander State) does not mean a reduction in UJ prosecutions. There is still a role for subsidiarity. In the proposed system of prosecutorial decision-making of Hovell and Malagodi, the risk of alleged offenses not being prosecuted elsewhere is a factor weighing in favor of the exercise of UJ. A case in point is the Argentinian prosecutor who recently requested arrest warrants against 25 individuals for crimes committed against the Rohingya in Myanmar.
Still, we must be alive to the reality and constraints of criminal justice systems. Despite the slogan of “ending impunity,” not every core international crime can be prosecuted; resources are finite and prosecutorial decision-making is always a balancing of different, conflicting interests. To ensure an effective and legitimate system of domestic and/or regional accountability, UJ allocation is the way forward. This does require coordination. The situation in Ukraine is a blueprint (Ryngaert, under III).
As Principal Investigator of the Joined Up Justice research project, mapping prosecutorial decision-making in UJ cases, I welcome the new policy approach of the ICC Prosecutor. The Rome Statute itself, with its provision on reverse cooperation, the EU framework of cooperation in criminal matters, and the Hague Llubjana treaty provide the legal framework for setting up a durable system of burden-sharing and coordination.