Editor’s note: This is part of Just Security’s Symposium on the ICC OTP’s Policy on Complementarity and Cooperation.
Author’s note: René Urueña is a professor at Universidad de Los Andes (Colombia) and Special Advisor on Complementarity to the Prosecutor of the ICC. This article reflects his personal views and does not reflect the opinions of the OTP, the ICC, or its staff.
In April 2024, the Office of Prosecutor (OTP) of the International Criminal Court (ICC) released a Policy Paper on Complementarity and Cooperation. As I mentioned in a brief introduction to this symposium, the Policy is structured around four pillars: creating a community of practice, leveraging technology as an accelerant for justice, bringing justice to the communities, and, finally, harnessing cooperation mechanisms.
I supported the OTP’s creation of the policy in my role as Special Advisory on Complementarity to the Prosecutor and moderated its launch, in Bogotá, Colombia. An important conversation took place at that event, pointing to one of the most crucial challenges addressed by the Policy.
Speaking first, the President of Colombia’s Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, or JEP, the war crimes tribunal created by the 2016 peace deal with the FARC) took note of the Policy’s strategies for cooperation, highlighting the importance of the OTP’s support to the JEP, particularly in its early years, when critics questioned its legitimacy. Later, he recalled instances of technical cooperation with the OTP that allowed the Colombian court to enhance its capacity in persecuting international crimes; for example, around the OTP’s Policy on gender persecution, which contributed to the JEP’s thinking about its own charges for that crime, brought against several defendants in the last couple of years.
Intervening later, the director of Colombian civil society organization Comisión Colombiana de Juristas emphasized a different dimension of the Policy. While acknowledging the importance of cooperation, her intervention underscored that the principle of complementarity required the OTP to step in when States were not fulling their obligations under the Rome Statute — and that civil society would be there to demand that such an obligation is fulfilled, if needed.
Taken together, these two interventions illustrate the importance of the Policy’s key framework: its two-track approach, through which the Office seeks to engage in partnership with States to promote cooperation and complementary in seeking accountability, while remaining attentive of its mandate to prosecute Rome Statute crimes. In the first part of this article, I will explore some key dimensions of that approach, and its implications for the Policy’s implementation. Moreover, while some salient issues in the Policy have already been discussed in prior articles in the symposium, I want to bring to the fore two aspects that, I think, merit further comment: its innovative strategies to connect actors in the community of practice, including civil society and other actors, and its emphasis on technology.
The Two-Track Approach
The Policy builds on the architecture put together by the Rome Statute, according to which the ICC is established to be “complementary to national jurisdictions,” as put forward in the Statute’s Preamble. This structure imposes the need for national jurisdictions to be willing and able to effectively prosecute international crimes, and also requires the OTP to initiate investigations and prosecuting perpetrators when such domestic prosecutions are not forthcoming.
The Policy’s two track-approach builds on the OTP’s mandate to investigate, when conditions are met. Such a mandate to investigate therefore provides, on the one hand, the framework for all cooperation and partnership initiatives and, on the other, the incentives for States to initiative investigations and prosecutions that are informed by such initiatives. Thus, as the Policy explains, partnership and vigilance are not in tension, as they are often treated, but are rather both key to fulfilling the promise of the Rome Statute justice system (paras. 3-4).
To be sure, the two-track approach is not universally applicable (paras. 140-141). In certain contexts, there will be no national partner with the capacity nor the will to initiate investigations. In those cases, the OTP will exercise its statutory responsibilities to investigate and prosecute. The Policy provides tools for cooperation and coordination with other international accountability mechanisms that will make the OTP’s fulfillment of its mandate more effective. For example, the Policy emphasizes joint investigations teams (paras. 102-111) and coordination with other international rule of law actors, such as U.N. human rights agencies, regional human rights institutions, and Europol (paras. 113-115), all of which have the potential to support the OTP’s ability to fulfill its mandate, regardless of whether a national partner is available or not.
Moreover, the Policy notes the OTP’s position that the assessment of complementarity as a legal test, as put forward by article 17 of the Rome Statute, is dynamic, and must be continuously assessed even after the Office initiates investigations – a dimension that is often overlooked when too-sharp a contrast between vigilance and partnership is drawn. As Prosecutor Karim Khan said with the occasion of the opening of the Venezuela investigation (and the conclusion of Memorandum of Understanding with the government of that country), “The investigation – now opened – is not a one-way road. It is only the start of a process (…) The principle of complementarity is the foundation of the Rome Statute system and it remains an important principle during the investigation stage” (quoted in footnote 79 of the Policy). The OTP’s cooperation with, and support to, domestic authorities may take place in tandem with the Office’s prosecutorial activities, without involving an assessment of complementarity as a legal test under article 17 of the Rome Statute.
Ultimately, the two-track approach is a reflection of the OTP’s statutory mandate of stepping in whenever domestic authorities are unwilling or unable to prosecute Rome Statute crimes. In the framework of such statutory mandate, the Policy puts forward a number of tools of cooperation and partnership with national and international authorities that have the potential to effectively promote domestic accountability of international crimes, without affecting the OTP’s ability to exercise its prosecutorial mandate, whenever it is required. Both vigilance and partnership are necessary – that is why the Policy builds on both equally, to promote a strategy to ensure justice and accountability for international crimes.
An Office That Is Closer to Victims
The Policy creates a number of spaces to bring justice closer to the communities and to interact with civil society on the ground. First, the Policy explains that the OTP is moving to establish field offices in relevant situations, mentioning its work with the other organs of the Court to put in place arrangements in Ukraine, Venezuela, Bangladesh, and Libya. The field office of the Court was established in Kyiv, Ukraine, in September 2023 (para. 78), and the Policy mentions the OTP’s interest in exploring an enhanced field presence in or proximate to a number of other situations, including the State of Palestine (Ibid). These field offices will, in turn, serve as the hub for a new program for engagement with national civil society and local community-based organizations working in that particular site (para. 83).
Moreover, the Policy puts forward the creation of a Complementarity and Cooperation Forum to share and discuss best practices. The Forum is composed of national practitioners and experts nominated by States Parties and non-Party State national authorities’ investigators (para. 38) and would create a space for interaction that also includes representatives of victims, expert of judicial cooperation, and national investigators, among others (para. 40). In complement to this forum, the Policy also describes the creation of an enhanced structural dialogue with civil society partners to discuss the implementation of the Policy’s implementation (para. 84).
Finally, the Policy presents initiatives for the ICC to have in situ proceedings. Subject to the approval of the Court, the OTP will seek to hold at least part of the proceedings in the situation country or in the region (paras. 96-99). This strategy, which has been implemented by the Inter-American Court of Human Rights, promises to bring the Court closer to communities, and be transformative in its ability to make the ICC part of the reality of victims and its representatives.
Technology in the Context of Complementarity and Cooperation
The Policy devotes part of its focus to the role of technology in the context of investigations. It is well-understood that digital data is increasingly relevant for complex criminal investigations – not only in the form of digital evidence (such as digital video recordings, emails, or social media posts) but also by the increased relevance of analytics in processing large amounts of data for investigative purposes. This increased reliance on digital technology risks creating an ever-increasing gap between the digital capacity of domestic accountability efforts and the requirements of investigations of complex Rome Statute crimes, which poses a key challenge to accountability in the future.
Even if political will for domestic prosecution does exist in a particular context, lack of digital infrastructure and know-how might prevent effective prosecutions. The Policy takes some steps to take seriously this challenge as a matter of complementarity and cooperation, setting the pillars for further initiatives as other opportunities for cooperation appear.
The Policy mentions investments to strengthen the OTP’s own capacity to process digital evidence (such as geo-spatial and satellite imagery, financial data, or call data records or intercepted communications), and to transmit it to other criminal jurisdictions, following appropriate protocols (para. 62). Moreover, the Policy also informs of a key partnership with Microsoft, Accenture Avanade, and other technology actors to strengthen the OTP’s ability to do analytics on large amounts of data, which is a key challenge in contemporary complex criminal investigations; this agreement includes a modernized cloud platform, automated transcription and translation, and enhanced facial and object detection, again subject to appropriate protocols (paras- 65-68).
These improvements are key in terms of complementarity and cooperation. They create spaces for the OTP’s strengthened capacity to have network effects and support domestic accountability initiatives. The Office may be able to share information that is relevant for domestic proceedings and, perhaps most importantly, may be able to provide centralized analytic capacity to specific domestic accountability mechanisms that hold evidence but lack the computing infrastructure to process it (paras. 69-71). Thus, while complementarity is seldom thought of as a problem of technology, the Policy reframes complementarity in those terms, creating a bridge between these two issues, crafting a space with great potential for further expansion.
A Dynamic Tool for Accountability
The OTP’s Policy on Complementarity and Cooperation builds on the idea of a dynamic process of partnership with national authorities, civil society, and other accountability mechanisms, that exists in parallel to, and is framed by, the OTP’s vigilant exercise of its statutory mandate. This process involves a dynamic of learning by both domestic authorities and the OTP, which contributes to the resilient structures of accountability.
The key is, of course – as other articles in the symposium have discussed – the Policy’s implementation. The OTP has already shown commitment in its implementation, announcing financial commitments for the field offices, which is a transformative dimension of the Policy. Joint investigative teams are already underway, such as the Joint Team to investigate crimes against migrants crossing the Central Mediterranean route, or the Ukraine project. Moreover, partnership with national authorities, such as the Special Jurisdiction for Peace in Colombia, or the investigation leading to the trial addressing alleged crimes committed at the Conakry Stadium in 2009 in Guinea, have proven the potential of complementarity. Key collaborations with Eurojust and Europol are already underway, and the other contributions to this symposium also include some valuable suggestions as to where to direct efforts and resources in terms of implementation. And yet, as the conversation at the Policy’s launch in Colombia illustrated, the goal of deploying these tools of cooperation and assistance while of keeping a vigilant eye on States’ actual commitment to prosecute international crimes must remain cardinal. Victims expect as much – particularly at this time, when it is so important to make the OTP a true hub of international criminal justice.