The Positive Complementarity: An Alternative Approach for the ICC’s Engagement
2. Part A: The Complementarity in Question
The Ignored Complementarity: The complementarity principle requires the OTP to respect local investigation and prosecution of the Statutory crimes. The ICC follows the “same person, same conduct” test to leave any alleged crime for domestic jurisdiction. The prosecution of Thomas Lubanga Dyilo revealed the limit of this approach.3 When Lubanga was indicted by the ICC for offences like conscripting and enlisting child soldiers, a domestic investigation against him for serious crimes (murder, torture, etc.) was in progress in the Democratic Republic of Congo (DRC).4 Lubanga’s trial before the ICC represents preemptive mistrust on the national justice system and a bad selection of case without proper analysis of “either gravity or complementarity.”5
Again, Jacobs observes that in Kenya situation, the ICC was not patient enough to allow the performance of the domestic accountability mechanisms for the 2008 post-electoral violence.6 The ICC permitted proprio motu investigation in March 2010 disregarding Kenya’s progress in establishing accountability commission and legislation for national prosecution.7 The civil society and NGOs working in Kenya expected the ICC’s engagement in enhancing judicial capacity for domestic trial. Unfortunately, the OTP refused to “expressly engage in training and technical support” for the national accountability mechanism.8 Kenya expressed unequivocal intention to prosecute suspects domestically, enacted legislation criminalizing crimes against humanity, prepared Bills for a Special Tribunal, and pledged referral to the ICC if the national initiatives failed.9 Though nothing really indicated that Kenya was “unwilling or unable”, the OTP started investigation disregarding national justice initiatives. Such incidents undermine the value of the complementarity principle and indicate judicial imperialism of the ICC.
Indeed, the ICC cannot function likewise to any NGO, also its limited resource does not allow much leverage to engage in judicial capacity building in member or non-member states. Similarly, the investigation by the OTP and prosecution at The Hague are not free rides. If a member or non-member state attempts to initiate
3 Dov Jacobs, ‘The ICC and Complementarity: A Tale of False Promises and Mixed up Chameleons’
(Post-Conflict Justice, 11 December 2014) < http://postconflictjustice.com/the-icc-and-complement arity-a-tale-of-false-prom ises -and-mixed-up-chameleons> accessed 9 January 2020.
4 The Prosecutor v. Thomas Lubanga Dyilo ICC-01/04-01/06.
5 William A. Schabas, ‘Prosecutorial Discretion v. Judicial Activism at the International Criminal Court’ (2008) 6 Journal of International Criminal Justice 731-61.
6 Dov Jacobs (n 3).
7 Chandra Lekha Sriram and Stephen Brown, ‘A Breakthrough in Justice? Accountability for Post- Election Violence in Kenya’ Centre on Human Rights in Conflict, Policy Paper No. 4, August 2010.
8 Ibid.
9 Lionel Nichols, ‘ICC Prosecutor Seeks Permission to Investigate Kenyan Crimes Against Humanity’ (EJIL: Talk! 17 November 2009) <https://www.ejiltalk.org/icc-prosecutor-seeks- permission-to-investigate-kenyan> accessed 2 January 2020.
national accountability measures at its expenses, a simple sharing of expertise and monitoring by the ICC might add momentum. For multilayered accountability, rather than disregarding the national accountability measure, however “sluggish”
it is, the OTP might target the real “unable and unwilling” states.
The Objectivity is Challenged: The states refer politically troublesome cases to the ICC even when they themselves could initiate proceedings. The self-referrals from Congo, Central African Republic, Uganda, Coˆte d’Ivoire, and Mali represent this abuse of the process of the Court. Allegedly, the self-referring governments strategically manipulate article 13(a) to “delegitimize and incapacitate political enemies.”10 Such self-referrals though keep the ICC alive, risk its judicial objectivity.
The ICC’s relationship with the Security Council also has impaired its credibility.
Until now, the Council has referred two African situations (Sudan and Libya), ignoring the local and regional disapproval. South Africa alleged that the Council, though referred African situations, ignored similar or worse situations in Afghanistan, Iraq, North Korea, Palestine, Sri Lanka, Syria, Ukraine, and the USA regarding the breach of targeting rules, disproportionality in the use of force, and counterterrorism measures including clandestine interrogations and detention.11 Thus, the ICC is losing its acceptance by responding to the Council’s referral
“characterized by double standards, lack of consistency and coherence”.12 The OTP also face challenge over alleged selectivity, namely, one-sided indictment, sequential investigation, and targeting only non-governmental forces where the government is also implicated in abuse; lopsided indictments in the DRC, Coˆte d’Ivoire, and Kenya attracted much criticism.13
Decoupling Peace and Justice: The accountability for atrocious crimes might be either criminal or non-criminal. Due to the formidable challenges in implementing criminal accountability at the national and international level, the non-criminal accountability - in the forms of truth telling, public apology, reparations for victims, and initiative for public memorialization – has been widely practiced for transitional justice in the post-conflict society. 14 This approach allows compromising hard criminal accountability for the interest of sustainable peace
10 C. Hillebrecht and S. Straus, ‘Who Pursues the Perpetrators? State Cooperation with the ICC’, 39 Human Rights Quarterly (2017) 162-88.
11 Declaratory Statement by the Republic of South Africa on the Decision to Withdraw from the Rome Statute of the International Criminal Court (19 October 2016) <https://treaties.un.org/ doc /Publication/CN/2016/ CN. 786.2016-Eng.pdf.> accessed 2 January 2020.
12 Manisuli Ssenyonjo, ‘State Withdrawal Notifications from the Rome Statute of the International Criminal Court: South Africa, Burundi and the Gambia’ (2018) 29 Criminal Law Forum 63–119.
13 Matiangai Sirleaf, ‘The African Justice Cascade and the Malabo Protocol’ (2017) 11 International Journal of Transitional Justice 71–91.
14 Frank Haldemann, ‘Another King of Justice: Transitional Justice as Recognition’ (2008) 41(3) Cornell International Law Journal 675-737.
and democracy because these are the ultimate objectives that any criminal justice process intends to achieve.
The Rome Statute does not recognize any procedural immunity whether under national or international law.15 But in the pre-ICC era,– “the UN itself pushed for, helped negotiate, or endorsed the granting of amnesty as a means of restoring peace and democratic government” in Cambodia, El Salvador, Haiti, Sierra Leone, and South Africa.16 Countries like Argentina, Brazil, Cambodia, Chile, El Salvador, Guatemala, Haiti, Honduras, Ivory Coast, Nicaragua, Peru, Sierra Leone, South Africa, Togo, and Uruguay have granted amnesty to their former oppressive regimes to avail peace agreement. 17 Also, there are instances18 of amnesty in exchange of self-abdication and exile in a foreign country19 or restricted public life in the home country20.
Article 6(5) [Additional Protocol II, Geneva Conventions] also encourages granting of wide amnesty at the end of a non-international armed conflict to achieve reconciliation. 21 In Azapo v. South Africa case22 the Supreme Court of South Africa favors amnesty in exchange of full disclosure of the truth. The truth telling is likely to meet the right of the victims and their families to know what atrocities happened during the conflict and why; it ensures acknowledgement from the perpetrators that what they did is wrong. The assumption – revealing is healing - implies that uncovering past abuses can itself bring about political resolve and non-violent co-existence in a post-conflict society.23 Nino suggests that
prosecutions may have some limit and must be counterbalanced with the aim of preserving the democratic system. This last caveat is all the more sensible once we realize that the preservation of the democratic system is a prerequisite of
15 Rome Statute, article 27. Also confirmed by the Appeals Chamber in the Prosecutor v. Omar Hassan Ahmad Al-Bashir case [ICC-02/05-01/09], judgment on 6 May 2019.
16 Ibid.
17 Michael Scharf, ‘The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes’ (Autumn, 1996) 59(4) Law and Contemporary Problems 41-61.
18 Dave Gilson, ‘The Exile Files, 2003’ (GPF, 21 August 2003) < https://www.globalpolicy.org/
component /content /article /163/28255.html > accessed 7 March 2020.
19 Example: Jammeh (Gambia), Mengistu Haile Miriam (Ethiopia), Hissíne Habré (Chad), Raoul Cedras (Haiti), Jorge Serrano Elias (Guatemala), Alberto Fujimori (Peru), Milton Obote (Uganda), Alfredo Stroessner (Paraguay).
20 Example: P.W. Botha (South Africa), Efrain Rios Montt (Guatemala), Valentine Strasser (Sierra Leone).
21 ICRC, ‘Commentary of 1987-Penal Prosecutions’ < https://ihl-databases.icrc.org/applic/ihl/ ihl.nsf/
COM/475-760 010? OpenDocument > accessed 12 June 2020.
22 (1996) 4 SA 671.
23 Nevin T. Aiken, ‘Rethinking Reconciliation in Divided Societies: A Social Learning Theory of Transitional Justice’ in Susanne Buckley-Zistel, Teresa Koloma Beck, Christian Braun and Friderike Meith (eds.) Transitional Justice Theories (Routledge 2014) 40-65.
those very prosecutions and the loss of it is a necessary antecedent to massive violation of human rights.24
Justice, peace, and democracy are mutually reinforcing imperatives.25 The ICC might restrain jurisdiction if its intervention is likely to jeopardize lasting peace and democracy in the conflict situation.
Another aspect weakening the ICC’s authority is the issuance of indictments during the midst of conflict. Kersten suggests that there may never be a consensus regarding the effects of the ICC on peace, justice, and conflict processes.26 Yet, experience from Sudan and Uganda suggests that the ICC’s intervention in live conflict blocked the peace process and opportunity for transitional justice and caused more harm than the original crime it purported to address.27 In Uganda, the Juba Peace Accord stalled in 2008 because of the LRA leaders’ refusal to attend peace talks due to the threat posed by the ICC’s indictments against them and the OTP’s decline to drop the indictments.28
Similarly, arrest warrants against the Libyan leaders “bolstered widespread perceptions of the conflict as a one-sided revolution between ‘good’ opposition forces and an ‘evil’ regime,” thereby legitimizing regime change in Libya.29 The warrant against Muammar al-Gaddafi and his entourage was capitalized by the NATO to legitimize their bombing in Libya.30 Ainley opines that “the NATO bombing which followed quickly after the referral … had the effect of making the ICC seem like a tool that the Council, or some members of it, can use to justify violence.”31
Initially, the African Union (AU) had no objection against the ICC’s interventions in Uganda, DRC, and CAR. Issuance of a warrant against President Al-Bashir tainted their relationship, stalled peace negotiation, and refueled the conflict.
Similarly, the ICC’s arrest warrant32 against top Libyan leaders quashed AU’s
“efforts aimed at finding a negotiated political settlement to the crisis in
24 Carlos S. Nino, ‘The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina’ (1991) 100(8) The Yale Law Journal 2619-2640.
25 Report of the UNSC on the Rule of Law and Transitional Justice, 23rd August, 2004, S/2004/616.
26 Mark Kersten, Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace (OUP 2016) 210.
27 Victor Peskin, ‘Caution and Confrontation in the International Criminal Court's Pursuit of Accountability in Uganda and Sudan’ (2009) 31 Human Rights Quarterly 655-91.
28 Steven C. Roach, ‘Multilayered Justice in Northern Uganda: ICC Intervention and Local Procedures of Accountability’ (2013) 13 International Criminal Law Review 249–268.
29 Mark Kersten, Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace (OUP 2016) 74.
30 NATO, ‘Press briefing on Libya’ (28 June 2011) <http://www.nato.int/cps/en/ natolive/ opinions _75808.htm> accessed 25 December 2019.
31 Kirsten Ainley (n 2).
32 In 2011, the UNSC unanimously referred the Libyan situation to the ICC via Resolution 1970 (2011).
Libya, … address, in a mutually reinforcing way, issues related to impunity and reconciliation.”33
The above discussions illustrate the ICC’s neglect to the complementarity and missed opportunity for sustainable conflict resolution at the national and regional levels. For the legality of intervention, the ICC must respect national and regional justice initiatives and priority for the sequencing of peace and justice.34 In a struggle between rigid accountability and absolute impunity, non-criminal accountability might be a considerable achievement to make a balance between peace and justice. Any national accountability initiative including amnesty, truth commission, indigenous dispute resolution, etc., having the prospect of coupling peace and accountability in post-conflict society should be recognized and respected for achieving the greater objective of the Rome Statute via complementarity.35