Implementing a Policy of Positive Complementarity in the Rome System of Justice

WILLIAM W. BURKE-WHITE*

IMPLEMENTING A POLICY OF POSITIVE COMPLEMEN-

TARITY IN THE ROME SYSTEM OF JUSTICE

Immediately upon assuming office in 2003, the ICC Prosecutor, LuisMoreno Ocampo, stated: �As a consequence of complementarity, thenumber of cases that reach the Court should not be a measure of itsefficiency. On the contrary, the absence of trials before this Court, asa consequence of the regular functioning of national institutions,would be a major success.�1 The Prosecutor�s statement embodieswhat can be best described as a policy of positive complementarity,according to which the Office of the Prosecutor (OTP) will encouragenational governments to undertake their own investigations andprosecutions of crimes within the Court�s jurisdiction.2

* Assistant Professor of Law, University of Pennsylvania School of Law, JD(Harvard, 2002), Ph.D. (Cambridge, 2006). The author wishes to thank Luis MorenoOcampo and the Jurisdiction, Cooperation and Complementarity Division of the

ICC, particularly Paul Seils, Wilbert von Hovel, and Silvia Fernandez de Gurmendi,for their insight and assistance. Thanks are due to those who read or commented onearlier drafts of this work including William Schabas, Colleen Burke, Carsten Stahn,

the participants in the Vienna meeting of the Association of Human Rights Institutesand the participants in the TMC Asser Institute/University of Leiden Seminar. Theauthor is grateful for research assistance from Adam Pollock and Maryam Jamshidi.Enormous debt is due to Mohamed El Zeidy for his ideas and contributions. For

financial support the author is grateful to the University of Pennsylvania FacultySummer Research Program. The author can be reached at [email protected]. Though the author has served as a Visiting Scholar in the Office of the

Prosecutor, International Criminal Court, the ideas expressed in this paper do notnecessarily reflect the views of the Office and are attributable solely to the Author.

1 Statement by the Prosecutor (16 June 2003), available at http://www.icc-cpi.int/otp/otp_ceremony.html.

2 Christopher Keith Hall, The Powers and Role of the Prosecutor of the Interna-

tional Criminal Court in the Global Fight Against Impunity, 17 LEIDEN J. INTL L 121,135–136 (2004).

Criminal Law Forum (2008) 19:59–85 � Springer 2007DOI 10.1007/s10609-007-9050-9

The concept of complementarity inherent in the Prosecutor�sstatement differs considerably from the understandings of the termarticulated at the time of the drafting of the Rome Statute in 1998. Asenvisioned in 1998, the complementarity provisions of the RomeStatute highlight the Court�s role as a backstop to national jurisdic-tions.3 The logic of complementarity expressed at Rome was that theCourt, where seized of jurisdiction, would merely step in wherenational courts fail to act.4 The ICC, it was thought, would provide asimple substitution of an international forum for a domestic one. Incontrast, positive complementarity as framed in the Prosecutor�scomment, suggests a far more active role for the Court, not merelystepping in where national courts fail to prosecute, but activelyencouraging prosecutions by national governments of crimes withinthe ICC�s jurisdiction.

The model of complementarity expressed by the Prosecutor sug-gests that the Rome Statute does far more than merely define thelimits of the Court�s power. Rather, the Statute may be said to createa system of judicial enforcement for the prosecution of the mostserious international crimes at both the domestic and internationallevels. The Statute recognizes duties and rights of both nationalgovernments and the international court to prosecute such crimes.5 Inso doing, the Rome Statute creates a tiered system of authority forthe prosecution of international crimes that could be coined �the

3 See Rome Statute of the International Criminal Court, adopted by the U.N.Diplomatic Conference of Plenipotentiaries on the Establishment of an International

Criminal Court on 17 July 1998, art. 11, U.N. Doc. A/CONF. 183/9 [hereinafterRome Statute] art. 17. See also John Holmes, The Principle of Complementarity, inRoy Lee (ed.), THE INTERNATIONAL CRIMINAL COURT, THE MAKING OF THE ROME

STATUTE ISSUES, NEGOTIATIONS, RESULTS 41; John Holmes, Complementarity:National Courts versus the ICC, in A. Cassesse (ed.), THE ROME STATUTE OF THE

INTERNATIONAL CRIMINAL COURT: A COMMENTARY 667 (noting that �Ironically,however, the provisions of the Rome Statute itself contemplate an institution that

may never be employed�).4 See Holmes, Complementarity: National Courts versus the ICC, supra note 3, at

667 (noting: �Of course, in reality there is a need for the ICC, since States may beunwilling to exercise jurisdiction over international crimes�).

5 See Rome Statute preamble (providing: �that it is the duty of every State to

exercise its criminal jurisdiction over those responsible for international crimes�). Seealso, Rome Statute prmbl. (indicating �that the most serious crimes of concern to theinternational community as a whole must not go unpunished and that their effective

prosecution must be ensured by taking measures at the national level and byenhancing international cooperation�).

WILLIAM W. BURKE-WHITE60

Rome System of Justice�.6 More specifically, complementarity regu-lates the allocation of authority between States and the internationalcourt and recognizes the shared competence and, perhaps evencommon duty, of national and international institutions to help bringabout an end to impunity. From this systemic perspective, the ICCand its OTP may be seen as having a broader role in ending impunityby encouraging national governments to undertake their own inves-tigations and prosecutions of international crimes. In this context,positive complementarity, refers to the potential for the ICC tocontribute to the effective functioning of national judiciaries.

Positive complementarity has been at the core of the OTP�s rhet-oric over the past three years, though it has not yet been specified, itspotential problems have not yet been considered, and it has not yetbeen adopted as a formal policy of the Office. Throughout his earlytenure, the Prosecutor made a number of statements reaffirming hiscommitment to the encouragement of national prosecutions. A Sep-tember 2003 policy paper prepared by a group of experts convened bythe Prosecutor noted, for example, that the OTP �will initiate pros-ecutions of the leaders who bear most responsibility for the crimes.On the other hand it will encourage national prosecutions, wherepossible, for the lower-ranking perpetrators, or work with the inter-national community to ensure that the offenders are brought to jus-tice by some other means�.7 In an address to the Assembly of StatesParties in September 2004, the Prosecutor likewise indicated that hewould take �a positive approach to cooperation and the principle ofcomplementarity. This means encouraging genuine national pro-ceedings where possible, relying on national and international net-works, and participating in a system of international cooperation.�8

Rhetorically, at least, the OTP appears committed to encouragingnational prosecutions as well as undertaking its own investigations

6 For a more detailed discussion of the allocation of authority within this system,see William W. Burke-White, Complementarity in Practice: The International Crim-

inal Court as Part of a System of Multilevel Global Governance in the DemocraticRepublic of Congo, 18 LEIDEN J. INTL L. 557–590 (2004); see also William Burke-White, MULTILEVEL GLOBAL GOVERNANCE IN INTERNATIONAL CRIMINAL LAW

ENFORCEMENT, PhD dissertation (2006) (on file with author).7 Paper on Some Policy Issues Before the Office of the Prosecutor (September

2003), available at http://www.icc-cpi.int/otp/otp_policy.html (last visited 30 Dec.2006).

8 Address by the Prosecutor to the Third Session of the Assembly of States Parties

(6 Sept. 2004), available at http://www.icc-cpi.int/library/asp/LMO_20040906_En.pdf (last visited 30 Dec. 2006).

POLICY OF POSITIVE COMPLEMENTARITY 61

and prosecutions of international crimes where domestic courts fail toact. However, the OTP has yet to formally set out the details of sucha policy nor have the implications of the policy been systematicallyconsidered. This article seeks to develop such a policy, whereby theOffice of the Prosecutor would not merely prosecute when nationalcourts fail, but would actually encourage the prosecution of inter-national crimes by national courts. While the idea of positive com-plementarity has been frequently stated by the Prosecutor, the policydeveloped here pushes the OTP further toward explicitly encouragingnational prosecutions than the Prosecutor�s vision to date. Thisarticle recognizes that within the OTP�s mandate under the RomeStatute, the Prosecutor has considerable leverage to encourage andactivate national judiciaries. Moreover, the article suggests that theoverall goal of the Rome Statute—ending impunity—may be bestachieved through such encouragement of national prosecutions.Though such a policy is grounded in the Rome Statute and reflectsthe sentiments of the Prosecutor, its implementation will require theCourt to move beyond its current policies and practices.

Applied in practice, a policy of positive complementarity meansthat the OTP would actively encourage investigation and prosecutionof international crimes within the Court�s jurisdiction by States wherethere is reason to believe that such States may be able or willing toundertake genuine investigations and prosecutions and where the activeencouragement of national proceedings offers a resource-effectivemeans of ending impunity.

Even under a policy of positive complementarity, the Court�sprimary function will largely remain the direct investigation andprosecution of international crimes. Yet, there are three separate setsof circumstances in which the OTP may have an appropriate role inencouraging national prosecutions through positive complementar-ity. The first circumstance in which positive complementarity may beimplemented is when a State is unwilling to prosecute internationalcrimes due, for example, to the domestic political costs of prosecutingthe individual in question. In this situation, active encouragement ofnational prosecutions by the ICC may shift a national government�sdomestic cost calculation in favor undertaking its own investigationsand prosecutions. A second circumstance in which positive comple-mentarity may be appropriate is when a State is unable to prosecute,either due to judicial collapse or the unavailability of witnesses orevidence. In this situation, the ICC may be able to enhance thecapacity of national judiciaries to prosecute international crimes. A


third circumstance in which positive complementarity may be effec-tive is when a State is able and willing to prosecute some, but not all,crimes within its jurisdiction. In this case, the ICC may be able toengage in a �division of labor� with that State to share the burden ofprosecuting international crimes. In each of these three circum-stances, positive complementarity will operate very differently basedon the reasons for the State�s failure to prosecute and situation-specific tactics will need to be developed to implement the policy.

A policy of positive complementarity and the full activation of theRome System of Justice offer the most effective—and perhapsthe only way—of achieving the goal of ending impunity set out in theRome Statute. The specification and formal adoption of such a policyby the Prosecutor may be essential to the Office�s ultimate success.Yet, neither the legal basis for nor the practical implications ofpositive complementarity have been publicly addressed by the Courtnor systematically analyzed in the academic literature. This articlefills this gap by developing a sound legal foundation for a policy ofpositive complementarity and by disaggregating the various circum-stances in which positive complementarity may be used so as toprovide a framework for implementation.

Part I of the article argues that a sound legal basis exists for theadoption of a policy of positive complementarity. The next three Partsconsider the various circumstances in which positive complementaritymay be applied and offer a framework for possible implementation bythe OTP. Specifically, Part II considers the application of positivecomplementarity in circumstances in which a national government isunwilling to prosecute international crimes itself. Part III addressesthe application of the policy with respect to States that are unable toprosecute international crimes. Part IV analyzes positive comple-mentarity as it relates to the possible division of labor with States. Theconclusion argues that the adoption of positive complementarity ineach of its three possible forms could significantly enhance the ICC�sability to contribute to ending impunity.

I. THE LEGAL MANDATE FOR A POLICY OF POSITIVECOMPLEMENTARITY

For the ICC to embrace a policy of positive complementarity byencouraging national prosecutions of international crimes, such apolicy must have a legal basis in the Rome Statute or the inherentpowers of the Prosecutor. A legal basis for positive complementarity


can be found in three separate elements of the Rome Statute. First,the Rome Statute does not prohibit positive complementarity asoutlined in this article. Second, the express powers of the Prosecutorin the Statute can serve as the basic tactics for such a policy. Third,the inherent powers of the Prosecutor under the Rome Statute canjustify a policy of positive complementarity. Though the implemen-tation of positive complementarity may represent a departure fromthe present practice of the ICC, it would be well within the Prose-cutor�s authority under the Statute to adopt such a policy.

Article 17 of the Rome Statute governs the admissibility of casesbefore the ICC. A careful analysis of Article 17 makes clear thatnothing in the article prohibits the OTP from pursuing a policy ofpositive complementarity. According to Article 17, cases must bedeemed inadmissible before the ICC if they are being or have beeninvestigated or prosecuted by national authorities, unless suchnational investigation or prosecution is not genuine.9 Article 17confirms that States have a primary right and duty to prosecuteinternational crimes and the ICC may step in where States fail to doso. Complementarity provides a fundamental limitation on thepowers of the OTP, in that the OTP and the Court cannot act ifgenuine proceedings are being taken at the national level.

The Statute further calls upon the Prosecutor to evaluate the abilityand willingness of a national government to investigate or prosecutecrimes within the Court�s jurisdiction. In his decision to initiate aninvestigation or prosecution, Article 53 requires that the Prosecutor�consider whether the case would be admissible under Article 17.�10

Even after the initiation of an investigation, the Statute furtherrequires the Prosecutor to evaluate national judicial efforts and informthe Pre-Trial Chamber that there are no grounds for prosecutionbecause a case is inadmissible due to a genuine national proceeding.11

Where such a genuine national investigation or prosecution is

9 Article 17 provides that a case shall be inadmissible where the case is being or has

been �investigated or prosecuted by a State which has jurisdiction over it, unless theState is unwilling or unable genuinely to carry out the investigation or prosecution.�Rome Statute art. 17. On the principle of Complementarity, see generally Holmes,

Complementarity: National Courts Versus the ICC, supra note 3, at 66; Mohamed ElZeidy, The Principle of Complementarity: A New Machinery to Implement Interna-tional Criminal Law, 23 MICH. J. INTL L.869 (2002); M. A. Newton, Comparative

Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of theInternational Criminal Court, 167 MIL. L. REV. 20 (2001).

10 Rome Statute art. 53 (1)(b).11 Rome Statute art. 53(2).


underway or has occurred, complementarity prohibits investigation orprosecution at the international level by the ICC.

The admissibility limitations in the Rome Statute do not, however,bar the Prosecutor from encouraging presently inactive nationaljudiciaries to prosecute such crimes. Admittedly, should the OTP besuccessful in encouraging national prosecutions, the particular case inquestion might well become inadmissible before the ICC underArticle 17. That result, however, would be ideal in that the crime inquestion would, in fact, be prosecuted and impunity avoided.12

Since nothing in Article 17 prohibits the Prosecutor from pursuinga policy of positive complementarity, it is necessary to considerwhether the Statute might give the Prosecutor affirmative authority toimplement such a policy. While complementarity is a formal legalrequirement of admissibility, it is also a broader principle that allo-cates authority among concurrently empowered institutions at dif-ferent levels of governance within an international justice system.13

Such a broader reading of complementarity sees the Rome Statute notjust as the foundational instrument of the ICC, but also as the basis ofthe Rome System of Justice. The purpose of this system, as indicatedin the preamble to the Statute, is to �put an end to impunity�.14 Each ofthe institutions within this system—the array of available nationalcourts and the ICC—are intended to contribute, in a variety of ways,toward this goal. The perspective on complementarity afforded by thisconception of the Rome System of Justice may well confer affirmativeauthority on the Prosecutor to engage in positive complementarity.

In the Rome System, States have a clear duty to prosecuteinternational crimes within their jurisdictions. Again, the Preambleto the Rome Statute provides that States have a duty �to exer-cise…criminal jurisdiction over those responsible for internationalcrimes�. Such an obligation derives from the aut dedere aut judicare(extradite or prosecute) requirement to which most States Partiesare subject through external legal obligations15 included in, forexample, the four Geneva Conventions of 1949 and their Additional

12 See Rome Statute preamble.13 See generally, El Zeidy, supra note 9; William W. Burke-White, A Community of

Courts: Toward a System of International Criminal Law Enforcement, 24 MICH. J.

INTL L. 1. 91–95 (2003).14 Rome Statute preamble –5.15 See M. CHERIF BASSIOUNI, AUT DEDERE AUT JUDICARE: THE DUTY TO EXTRA-

DITE OR PROSECUTE IN INTERNATIONAL Law (1995).


Protocols of 197716 and theGenocide Convention.17Within this RomeSystem, States therefore have the primary legal obligations to provideaccountability for crimes that occur within their own jurisdictions andought to be expected to prosecute such crimes themselves.

The second key element of this Rome System of Justice is the ICCitself. The Rome Statute gives the ICC a clear secondary competence toexercise jurisdiction over international crimes where States fail to do soor do so in a less-than-genuine manner. In addition, within the RomeSystem, the Court may have a number of other means at its disposal tohelp bring about an end to impunity, often by encouraging nationalgovernments to exercise jurisdiction over such crimes on their ownaccord. These means further the overall purpose of the Rome System toend impunity by pressuring States to fulfill their primary legal obligationto prosecute international crimes. In the Rome System, then, the com-plementarity provisions of the Statute offer a mechanism for allocatingauthority between States and the International Court and recognize theshared competence and, perhaps, even shared duty, of national andinternational institutions to help bring about an end to impunity.

Though the Rome Statute does not expressly reference a policy ofpositive complementarity, it does provide for a number of specificinteractions between the OTP and States that may directly serve thegoals of positive complementarity. Each of these statutorily autho-rized powers of the Prosecutor can provide a foundation for mech-anisms of positive complementarity that promote nationalprosecutions of international crimes. The Rome Statute creates a

16 See Convention for the Amelioration of the Condition of the Wounded andSick in Armed Forces in the Field, 12 Aug. 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31[hereinafter Geneva Convention I]; Convention for the Amelioration of the Condi-tion of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 Aug.

1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; GenevaConvention Relative to the Treatment of Prisoners of War, 12 Aug. 1949, 6 U.S.T.3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]; Geneva Convention

Relative to the Protection of Civilian Persons in Time of War, 12 Aug. 1949, 6 U.S.T.3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. The Grave Breachesprovisions of each convention call upon States Parties �to search for persons alleged

to have committed, or to have ordered to be committed, such grave breaches, andshall bring such persons, regardless of their nationality, before its own courts. It mayalso, if it prefers, and in accordance with the provisions of its own legislation, hand

such persons over for trial to another High Contracting Party concerned, providedsuch High Contracting Party has made out a prima facie case.� Geneva ConventionIII art. 129.

17 See generally Convention on the Prevention and Punishment of the Crime ofGenocide, 9 Dec. 1948, 102 Stat. 3045, 78 U.N.T.S. 277.


number of opportunities for communication and dialogue betweenthe Court and national governments on issues of complementaritythat may be utilized as mechanisms to encourage national prosecu-tions. Specifically, Article 15 allows the Prosecutor to seek informa-tion from States with respect to communications he receives.18 Article18 requires that, in certain circumstances, the Prosecutor notify Statesthat would ordinarily exercise jurisdiction of his intent to open aninvestigation. Should the Prosecutor defer to a State�s investigation,he has the authority to request the State to �periodically inform theProsecutor of the progress of its investigations and any subsequentprosecutions�.19 Such communications, which have a clear statutorybasis, may serve to encourage national prosecutions and thus are keytools for the implementation of positive complementarity.

Article 53 of the Rome Statute allows the Prosecutor to continue hisevaluation of admissibility issues—potentially through ongoing dialoguewith national governments—throughout the investigative phase of pro-ceedings.20 Such an ongoing evaluation of admissibility—as evidenced inthe OTP�s approach to Sudan21—envisions that a State initially not ableor willing to prosecute may become able or willing to do so during thecourse of theOTP�s investigation and that outside factors—including theCourt�s own activities—might contribute to that new willingness orcapacity. To the degree that this evaluative process by the ICC has animpact on the willingness or ability of a national government to under-take genuine prosecutions, it would be a hallmark example of positivecomplementarity with clear textual authority in the Statute.

Article 54 of the Statute specifies the Prosecutor�s powers withrespect to investigations. The Prosecutor is empowered to, among otherthings, �seek the cooperation of any State or intergovernmental orga-nization or arrangement in accordance with its respective competenceand/or mandate� and to �enter into such arrangements or agreements,not inconsistent with this Statute, as may be necessary to facilitate the

18 Rome Statue art 15(2).19 Rome Statute art. 18(5).20 Rome Statute art. 53 (1)(b), 53(2)(b).21 In Sudan, the OTP has engaged in ongoing monitoring of the Sudanese Gov-

ernments efforts to provide accountability. This has involved periodic evaluation oftrials in Sudan, multiple missions by OTP officials to Sudan for evaluative purposes,

and periodic reports to the UN Security Council on issues of admissibility. SeeStatement of the Prosecutor of the International Criminal Court to the UnitedNations Security Council pursuant to UNSCR 1593, 14 June 2006, available at

http://www.icc-cpi.int/library/organs/otp/LMO_20060614_En.pdf (last visited 28Nov. 2006).


cooperation of a State, intergovernmental organization or person�.22

Such cooperation, arrangements, and agreements again provide affir-mative legal support for the types of interaction between the OTP andStates that could be strategically used to encourage domestic prose-cutions by national judiciaries. In fact, the grant of authority in Article84 of the Statute is extraordinarily broad, allowing the Prosecutor toenter into anykindof arrangements not in conflictwith theStatute itselfand leaving the door open for the Prosecutor to design such arrange-ments in ways that encourage the activation of national judiciaries.

The Rome Statute also creates a range of obligations on StatesParties that, taken collectively, may provide a legal foundation foradditional efforts of the Prosecutor to encourage national prosecu-tions. These obligations include duties to cooperate with the Court�sinvestigations (Art 86), to have appropriate procedures under itsnational law to facilitate such cooperation (Art 88), to surrender per-sons to theCourt if legal requirements aremet (Arts 59, 89), andvariousother forms of judicial cooperation (Art 93). These provisions and thegeneral principle of pacta sunt servanda23 create direct legal obligationson States Parties to cooperate with the Court and adopt any necessarydomestic legislation therefore. Such obligations presuppose interac-tions between the OTP and States that, if used strategically, mayencourage prosecution of international crimes by domestic courts.Hence, they offer a basis for at least certain tactics of positive com-plementarity built around the interactions between theOTPandStates.

With respect to those interactions between States and the OTPthat have a statutory basis, the only distinction that may be drawn inthe context of a policy of positive complementarity is that theseinteractions are being used by the OTP to strategically encouragenational prosecutions. That distinction is not legally significant in theRome Statute. In fact, such strategic use of interactions is fully inkeeping with the object and purpose of the Rome Statute.

With respect to potential tactics of positive complementarity thatgo beyond the express provisions of the Statute, the Prosecutor mayalso have implied powers, stemming from the inherent authority ofhis office that authorize such activities. First, the Statute�s creation ofan independent Office of the Prosecutor recognizes that, to fulfill hisduties, he may have to take actions consistent with the Statute but

22 Rome Statute art 54(3)(d) and (e).23 See Vienna Convention on the Law of Treaties art. 26 (providing �Every treaty

in force is binding upon the parties to it and must be performed by them in goodfaith�).


not expressly stated in it.24 Second, the object and purpose of theRome Statute would seem to suggest such an inherent authority ofthe Prosecutor that goes beyond expressly enumerated powers in theRome Statute. Pursuant to the Vienna Convention on the Law ofTreaties, the Rome Statute must be interpreted in light of its objectand purpose. The Preamble to the Statute affirms that the purpose ofthe Court is to �put an end to impunity for the perpetrators of thesecrimes�.25 Likewise, the preamble recognizes that �it is the duty ofevery State to exercise its criminal jurisdiction over those responsiblefor international crimes�.26 Although these provisions are preambularin nature, they provide critical guidance into the object and purposeof the Rome Statute27 and indicate a broad construction of theProsecutor�s powers where he seeks to end impunity. Such a con-struction of the treaty, in light of its object and purpose, provides theProsecutor with a strong—if indirect—legal basis for adopting astrategy of positive complementarity.28

24 The Secretary General of the United Nations provides a useful point of com-parison. Though some of the Secretary�s powers are spelled out in the UN Charter, itis generally accepted that he has additional authority based on his position and office

that allow him to take actions necessary to fulfill his mandate and mission. For theformal legal mandate of the Secretary General, see UN Charter arts. 97–100.

25 Rome Statute preamble –5.26 Rome Statute preamble – 6.27 See Vienna Convention on the Law of Treaties art. 31. For a discussion, see

Quincy Wright, The Interpretation of Multilateral Treaties, 23 AM. J. INTL L. 94,103–104 (1929).

28 One potential concern with respect to the Prosecutor acting in conformity withthe Statute but reaching beyond his enumerated powers is that such action might notbe subject to scrutiny by the Pre-Trial Chamber. The Rome Statute was drafted to

ensure close supervision of the Prosecutor�s actions by the Court�s judiciary. This rolefor the Pre-Trial Chamber is not, however engaged until the Prosecutor either (1)opens an investigation (Article 15(3)), (2) decides not to open an investigation

because it would not be in the interests of justice to do so (Article 53), or (3) seeks anarrest warrant for an accused (Article 58). Activities of the OTP preliminary to theopening of a formal investigation are thus not subject to review by the Pre-Trial

Chamber. Hence, efforts by the Prosecutor to encourage national prosecutionspreliminary to a formal investigation cannot be said to interfere with or circumventthe Pre-Trial Chamber�s supervisory role. Even after the initiation of an investiga-tion, the Pre-Trial Chamber�s role with respect to admissibility is to prevent the

Prosecutor from acting where a case must be deemed inadmissible according toArticle 17. See Rome Statute art. 19. As long as a policy of positive complementarityseeks to encourage the exercise of national jurisdiction and respects such genuine

national action that may subsequently occur, it would be in conformity both with theformal limits of complementarity and the Pre-Trial Chamber�s supervisory role.


Taken collectively, the fact that the Rome Statute does not pro-hibit a policy of positive complementarity, the fact that a number ofexpressly enumerated provisions of the Statute could serve as thebasis for a policy of positive complementarity, and the inherentpowers of the Office of the Prosecutor provide a strong legal foun-dation for the OTP to adopt and implement such a policy.

II. POSITIVE COMPLEMENTARITY WITH RESPECTTO STATES UNWILLING TO PROSECUTE

INTERNATIONAL CRIMES

In practice, an effective policy of positive complementarity willrequire the OTP to determine and differentiate the reasons a State hasnot undertaken an investigation or prosecution of its own and, wherepossible, provide new incentives or capabilities for States to under-take their own investigations and prosecutions. Given the potentiallydiverse reasons for national judicial inaction and the varied strategiesnecessary for implementing a policy of positive complementarity, thetactics employed by the OTP will likewise vary based on the reasonsdomestic authorities may fail to prosecute international crimes. Thesections that follow develop differentiated strategies and tacticsthe OTP can employ to implement positive complementarity in thevariety of circumstances the court may face.

The first set of circumstances in which a State may fail to investigateor prosecute international crimes arises where the State is unwilling toundertake a prosecution of its own, despite the fact that it has thecapacity to do so. Where a State with jurisdiction is unwilling toprosecute a particular case, due, for example, to the politics costs ofsuch a prosecution, the OTP�s goal is to prevent impunity either byundertaking its own prosecutions of those most responsible for inter-national crimes in the territory of that State or by seeking to motivatethe State to prosecute the international crimes in question itself.

The unwillingness of a State to exercise jurisdiction is often theresult of a political calculation by judicial or executive officials thatdomestic prosecution will be too costly, either financially or politi-cally. The implementation of positive complementarity in such caseswould involve the OTP altering the incentives facing the unwillingState such that the State decides to initiate its own prosecution. Thebases of a State�s political calculation not to prosecute are varied andthe OTP�s tactics for a successful strategy of positive complementaritywill have to take into account the particular context and circum-stances of the specific State and case in question.


Often the most potent means available to the Court to motivate anunwilling State to exercise jurisdiction is to make clear to that Stateshould it continue to abstain from investigating or prosecuting par-ticular crimes, than intervention by the OTP is likely, or even inevi-table. Such a possibility of international prosecution is likely to makethe alternative of domestic prosecutions appear far less costly andpreferable to the high sovereignty costs imposed by ICC intervention.The most efficient way for the OTP to pressure a State based on thepotential threat of ICC investigation is by developing a strong trackrecord of investigating and prosecuting international crimes itself.Such a track record would make the threat of international prose-cution credible. In ideal cases, the result of such a credible threat ofinternational prosecution will be a shift in the incentives facing theState in favor of the activation of previously unwilling nationaljudiciaries as an alternative or complement to international prose-cution.

In some cases, explicit communication and dialogue between theOTP and States may make the threat of international prosecutionmore poignant and thereby further encourage national prosecution.The possibility of such communication is explicitly provided for inthe Rome Statute. The Prosecutor�s initial determination of admis-sibility under Article 17, the assessment of a potential situation underArticle 15, the process of informing States of a possible investigationunder Article 18(1), the reports to the Prosecutor with respect to adeferred investigation under Article 18(5), and the Prosecutor�sdecision to initiate or terminate an investigation under Articles 53(1)and (2) all foresee communication between the OTP and States.Likewise, these articles foresee the provision of information to theOTP with respect to investigations and prosecutions undertaken bynational judiciaries. Utilizing such communications to pressure andencourage states to prosecute crimes themselves would be fully con-sistent with the OTP�s powers under the Rome Statute.

Dialogue between States and the OTP can serve a number ofpurposes as part of a policy of positive complementarity. First, it hasthe potential to draw States� attention to international crimes withintheir jurisdictions of which they may be unaware. In some situations,actual or willful blindness to international crimes within a State�sjurisdiction may prevent prosecution. Informing a State of the OTP�sinterests in crimes within jurisdiction might force a State to confrontthe reality that crimes are occurring within its jurisdiction and spur itto undertake prosecutorial efforts domestically. Second, such


communication can put States on notice of the potential of aninvestigation or prosecution by the OTP. This awareness and notice,in turn, increases the potential sovereignty costs of continued inactionand may stimulate States to investigate and prosecution themselves.29

When the OTP communicates with national governments toencourage domestic prosecutions of international crimes, it mustdetermine the appropriate interlocutors within a national governmentwith whom to interact. Such communications are a form of diplo-matic exchange that, according to the Rome Statute, should be�transmitted through the diplomatic channel� unless States specifyotherwise.30 Generally, this language would require that the Officeaddress its communications to the executive authority of the State inquestion, usually the Ministry of Foreign Affairs. While the use ofdiplomatic channels is required as the first means of communicationbetween the OTP and a State, in many circumstances, especiallywhere the executive authorities of the State are resistant to nationalprosecutions, the OTP may seek follow-on communication directlywith judicial or prosecutorial authorities. Without circumventing thestatutory use of diplomatic channels, such direct follow-up commu-nication may allow the Office to encourage an independent nationaljudiciary to open a prosecution itself despite informal executivepreferences or policy to the contrary.31 Likewise, such direct contactmay help encourage interest groups within a State to further pressuretheir own government to alter policies in favor of prosecutions.32

29 Where such activation of national judiciaries occurs, continued monitoring ofdomestic proceedings by the OTP, in accordance with Article 18(5) of the Statute,may be necessary to promote genuine domestic proceedings.

30 Rome Statute art. 87.31 Given the statutory requirement that formal communications be addressed

through diplomatic channels, direct contact with judicial officials may either followfrom a more formal diplomatic request to the executive authorities of the State inquestion or may constitute more informal, voluntary interactions through, for

example, the growing number of networks of judicial officials in which the OTPparticipates. See Jenia Iontcheva Turner, Transnational Networks and InternationalCriminal Justice, 105 MICH. L. REV. 1 (2007) (noting the growing role of transgov-

ernmental networks in enforcing international criminal law); ANNE-MARIE SLAUGH-

TER, A NEW World Order (2004) (developing the theoretical model for governancethrough networks).

32 Such an approach draws heavily on liberal theories of international relations.See Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of Interna-tional Politics, 51 INTL ORG. 513, 518 (1997) (noting that �representative institu-

tions…create the critical �transmission belt� by which the preferences and socialpower of individuals and groups are translated into state policy�).


A number of readily available tactics may allow the OTP to com-municate the threat of international prosecution to States and shiftincentives in favor of national prosecution. First, the OTP will need toactively monitor for potential crimes within its jurisdiction and alertStates to such crimes within their jurisdictions.33 Second, the Officewill need to engage in dialogue with States unwilling to investigate orprosecute crimes themselves. Such communication may focus a State�sattention on its obligations to prosecute international crimes, mayprovide a form of acculturation through which accountability be-comes a norm of State conduct, and may allow States to recognizetheir own interests in domestic prosecutions. The Office may alsoconsider generating diplomatic or political pressure on Statesunwilling to prosecute through the use of bilateral dialogues with thirdStates, encouraging pressure from NGOs, and raising in multilateralfora the issues with respect to a State�s unwillingness to prosecute.34

Finally, the Office will need to monitor ongoing domestic judicialproceedings to ensure that any national prosecutions that are initi-ated meet the standards of genuineness outlined in the Rome Stat-ute.35 There is reason to be concerned that, where previouslyunwilling States undertake domestic prosecution in response to thethreat of prosecution by the OTP, the resultant domestic proceedingsmay lack a genuine intent to bring the suspect to justice. The Officecan minimize this risk by monitoring national proceedings directly or,

33 The OTP already routinely monitors for the commission of crimes within itsjurisdiction and is aided in this effort by a robust set of communications to the

Prosecutor from NGOs and individuals. See Rome Statute art. 15. For an exemplaryindication of communications to the Prosecutor, see Update On CommunicationsReceived by the Prosecutor of the ICC, International Criminal Court, 10 February2006, available at http://www.icc-cpi.int/library/organs/otp/OTP_Update_on_Com-

munications_10_February_2006.pdf (last visited 28 Nov. 2006) (noting that 1,732communications had been received to date).

34 The Prosecutor has used his regular reports to the UN Security Council withrespect to the situation in Darfur to raise the profile of the case and highlight theSudanese government�s failure to prosecute. See Fourth Report of the Prosecutor of

the International Criminal Court, Mr. Luis Moreno Ocampo to the UN SecurityCouncil Pursuant to UNSCR 1593 (2005), 14 December 2006.

35 See Rome Statute at art 17. For a discussion of standards of genuineness, see

Burke-White, supra note 6, at 574–580; Holmes, Complementarity: National Courtsversus the ICC, supra note 3.


in order to conserve resources and maximize impact, by developingpartnerships with NGOs and international organizations to conductsuch monitoring.36 By watching domestic proceedings and issuingpublic statements when necessary, the Office and its partners, may beable to provide ongoing pressure on governments to ensure thatdomestic investigations and prosecutions meet basic standards of dueprocess and are genuine efforts to bring the accused to justice. Suchmonitoring may also draw the State�s attention to inadequacies in itsdomestic processes at a stage when reform or adjustment is stillpossible.

III. POSITIVE COMPLEMENTARITY WITH RESPECTTO STATES UNABLE TO PROSECUTE

INTERNATIONAL CRIMES

A second set of relationships with States and, hence, alternativetactics for the implementation of a policy of positive complemen-tarity, arises where the State in question is unable to undertakeinvestigations or prosecutions of crimes within the jurisdiction of theCourt. In such circumstances, the mere threat of international pros-ecution by the OTP, in accordance with the discussion above, isunlikely to result in national prosecutions because the failure ofnational institutions is a deeper structural problem, such as the lackof judicial infrastructure after a civil war.37 Where States are unableto prosecute, a policy of positive complementarity requires the OTPto carefully consider the reasons behind that inability and determinewhether it can enhance the capacity of the State to investigate and

36 For example, the Organization on Security and Cooperation in Europe (OSCE)

has taken primary responsibility for monitoring 11bis trials before the State Court ofBosnia & Herzegovina and transmits reports on the quality of those proceedings tothe Prosecutor of the ICTY. See Interview with Dorthee Marotine, OSCE Legal

Advisor, in Sarajevo, Bosn. & Herz. (3 August 2005). See also WILLIAM W. BURKE-

WHITE, A SYSTEM OF MULTILEVEL GLOBAL Governance IN INTERNATIONAL CriminalLAW ENFORCEMENT, at ch. 5 (2006) (dissertation manuscript on file with author).

Other NGOs also routinely monitor such national court proceedings. For example,Human Rights Watch, Amnesty International, and the International Center forTransitional Justice have all issued reports on the quality of proceedings before

various national courts.37 Such inability can arise where a national government has effectively failed due

to ethic conflict or civil war. Likewise, inability may occur where a weak national

judiciary lacks the skills and resources to undertake a complex international prose-cution. For a discussion, see Burke-White, supra note 6, at 574–580.


prosecute itself. Such a determination requires a careful balancing ofthe OTP�s limited resources and the likely impact internationalassistance will have on the State�s ability to prosecute. In some cir-cumstances, efforts by the OTP to enhance domestic judicial capacitymay be appropriate and cost-effective. In other circumstances, theresources required to enhance the ability of a national judiciary toprosecute may be far too great to justify a policy of positive com-plementarity.

Particularly where States are unable to undertake investigationsdue to the collapse of a national judiciary, domestic capacity con-straints, or the inability to obtain a suspect or key evidence, the OTPand other international actors may have a role to play in assistingnational courts. Carefully targeted international assistance may helpnational governments develop the skills and resources to undertakeprosecutions on their own.38 However, such efforts can be both timeand resource intensive and, to the degree they become a focus of theOffice�s activities, they may divert resources from direct investigationand prosecution by the OTP. Strategic balancing of the costs andbenefits of domestic capacity building efforts is required.

Two sets of considerations counsel particular caution for the ICCundertaking national judicial reform efforts. First, existing interna-tional criminal tribunals have had very limited success in such effortsand their experiences are indicative of the difficulties the ICC mayhave if it chooses to engage in domestic capacity building. Both thead hoc tribunals for the Former Yugoslavia and for Rwanda havebeen the subjects of considerable criticism due to their limited contactwith national governments and their marginal influence—at least in

38 See Turner, supra note 31, at 22 (noting �Networks can be of assistance inhelping states establish effective investigation and prosecution strategies�). The Jus-tice Rapid Response Network has been created expressly for this purpose. See Justice

Rapid Response Initiative White Paper, available at http://www.aiad-icdaa.org/lnci/Justice%20Rapid%20Response%20Report%20Aug%2004.pdf (last visited 28 Nov.2006) (noting the goal of �providing resources and expertise at short notice in support

of genuine efforts to bring to justice perpetrators of genocide, crimes againsthumanity and war crimes�).


their early years—in promoting the effective exercise of nationaljustice.39 Perhaps more effective than the two ad hoc tribunals infacilitating domestic judicial reform and reconstruction is the newergeneration of hybrid tribunals, which draw on a mix of domestic andinternational resources and personnel and have operated or areoperating in Sierra Leone, East Timor, Kosovo, Bosnia and Cam-bodia.40 Yet, even the Special Court for Sierra Leone does not have aclear mandate for domestic judicial reform nor does it have theresources and experience to be highly effective in facilitating suchefforts.41 The ICC�s place in the international system and its statutorygoals suggest that it may be even more poorly situated to undertakenational judicial reform efforts than other tribunals. The ICC�s broadjurisdiction means the OTP will have to spread resources far morebroadly and, as a consequence, must be less engaged with any par-ticular national system than would an ad hoc or hybrid tribunal.

A second set of considerations counseling caution in undertakingefforts aimed at positive complementarity with respect to States unableto prosecute international crimes is that such efforts may have impli-cations for subsequent admissibility challenges. At a number of pointsin an investigation or prosecution, the Prosecutor and the Pre-TrialChamber are called upon to engage in a determination of admissibility.Article 15 requires that, where a situation is investigated under the

39 See Jose E. Alvarez, Crimes of States/Crimes of Hate: Lessons from Rwanda, 24

YALE J. INT’L L. 365 (1999). In fact, the ICTY has at times had a negative impact byfreezing out national judicial efforts or imposing high barriers on national prose-cutions through the Rules of the Road Program. See Rome Agreement on the Rules of

the Road, 18 February 1996, as cited in Mark S. Ellis, Bringing Justice to anEmbattled Region—Creating and Implementing the �Rules of the Road� for Bosnia-Herzegovina, 17 BERKELEY J. INTL L. 1, 7 (1999). More than 2,300 cases sent to the

ICTY were never reviewed and lost in administrative limbo. See War Crimes TrialsBefore the Domestic Courts of Bosnia & Herzegovina, Progress and Obstacles,Organization of Security and Cooperation in Europe Report, March 2005, at 6. Theresult, according to observers, was that �for nearly five years, the Rules of the Road

agreement shut down all efforts by Bosnian government authorities to utilize justiceto remove war criminals from powerful post-war positions.� See Paul R. Williams &Patricia Taft, War Crimes Research Symposium: The Role Of Justice In Building

Peace: The Role Of Justice In The Former Yugoslavia: Antidote Or Placebo ForCoercive Appeasement?, 35 CASE W. RES. J. INTL L. 219, 253–4 (2003).

40 For a discussion, see generally Burke-White, supra note 13; see also LauraDickinson, The Promise of Hybrid Courts, 97 AM. J. INT’L L. 295 (2003).

41 See Statute of the Special Court for Sierra Leone, available at http://www.

sc-sl.org/documents.html; Security Council resolution 1315 (2000) (14 August 2000)(last visited 28 Nov. 2006).


Prosecutor�s proprio motu powers, both the Prosecutor and the Pre-Trial Chamber must examine issues of admissibility.42 Where theinvestigation is initiated based on a referral fromanother State Party orfrom the SecurityCouncil, Article 18 provides that the Prosecutormustmake an initial determination of admissibility, and that the Pre-TrialChamber may make an admissibility determination either on its ownmotion or if the Prosecutor�s decision is challenged by a State Party thatis investigating or has investigated the case or by the accused. Likewise,Article 53 indicates that theProsecutormust take issues of admissibilityinto account in initiating an investigation or suspending an alreadyopen investigation with the approval of the Pre-Trial Chamber. Allsuch determinations of admissibility include an evaluation of thecomplementarity criteria provided for in Article 17 of the Statute.

Any assistance provided by the Court could have a direct bearingon whether national prosecutions are considered genuine by the Pre-Trial Chamber. Judicial reform efforts may have legal consequenceswhere the Court or the OTP provides assistance, resources, ortraining and the national government then proceeds to undertakeprosecutions of its own. In certain circumstances, even after thereceipt of assistance and support from the Court, the investigation orprosecution undertaken nationally may still lack genuineness or maybe intended to shield a particular accused or to block the work of theICC.43 Should the ICC decide to investigate and prosecute such acase itself, the accused, a State with jurisdiction over a case, or a Statefrom which acceptance of jurisdiction is required pursuant to Article19 of the Statute, may challenge admissibility. The potential dangerraised by the Court�s direct provision of assistance or technical adviceis that the entity challenging admissibility of the case may well cite tothe assistance from, training by, or involvement of the OTP asevidence of a genuine national process.

42 See Rome Statute, at Art. 17. For a further discussion of admissibility deter-

minations, see Mohamed El Zeidy, Some Remarks on the Question of the Admissi-bility of a Case during Arrest Warrant Proceedings before the International CriminalCourt, 19 LEIDEN J. INT�L L. 741 (2006).

43 These would be circumstances in which the Office could argue a case remainsadmissible despite a national proceeding. See Rome Statute art. 17(2) (providing: �Inorder to determine unwillingness in a particular case, the Court shall consider,

having regard to the principles of due process recognized by international law,whether one or more of the following exist, as applicable: (a) The proceedings wereor are being undertaken or the national decision was made for the purpose of

shielding the person concerned from criminal responsibility for crimes within thejurisdiction of the Court referred to in Article 5�).


Thus far, the Pre-Trial Chamber has developed an activist line ofjurisprudence in determining whether cases are admissible, even atthe arrest warrant phase.44 In the case of Thomas Lubanga, Pre-TrialChamber I observed: �it is the Chamber�s view that an initial deter-mination on whether the case against Mr. Thomas Lubanga Dyilofalls within the jurisdiction of the Court and is admissible is a pre-requisite to the issuance of a warrant of arrest for him�.45 In a decisionof 8 July 2005, Pre-Trial Chamber II concluded that the case againstJoseph Kony and the Lord�s Resistance Army �appears to beadmissible�.46 Both these decisions indicate the Pre-Trial Chamberwill not merely accept the Prosecutor�s assertions of admissibility, butwill undertake its own assessment. Moreover, admissibility may betested again at trial, perhaps even more rigorously.47 Given the strictscrutiny the Pre-Trial Chamber appears to be applying to admissi-bility determinations,48 it might well consider involvement by theOTP in national reform efforts as relevant to—if not decisiveof—ultimate admissibility determinations.

Without more jurisprudence indicating how the Pre-Trial Chamberwill treat assistance from theOTP, development of specific strategies toavoid admissibility consequences may be premature. However, certaintypes of assistance and training are likely to pose greater risks thanothers. Two key factors are likely to influence whether any assistanceprograms cause admissibility risks: first, the specificity of the assistance

44 For a detailed discussion of admissibility requirements and the Pre-Trail

Chambers role in judging admissibility, see El Zeidy, supra note 42.45 See Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor�s Appli-

cation for a Warrant of Arrest Under Article 58, Case No. ICC-01/04-01/06, 10

February 2006, –– 17–18.46 Decision on the Prosecutor�s Application for Warrants of Arrest Under Article 58,

ICC-02/04 5 July 2005.47 See El Zeidy, supra note 42, at 748 (indicating that �only a prima facie deter-

mination of admissibility had been made, at least by Pre-Trial Chamber II� and that a

further determination could follow).48 In publicly available decisions to date, both the Pre-Trial Chamber and the

Appeals Chamber have sought to develop an independent voice and, at times, checkthe Prosecutor�s freedom of action. For example, the Pre-Trial Chamber decidedover the Prosecutor�s objections to allow victims a clear role in proceedings evenbefore crimes were alleged and the Appeals Chamber refused the Prosecutor an

interlocutory appeal on that question. See On the Applications for Participation in theProceedings of VPRS1, VPRS2, VPRS3, VPRS4, VPRS5, and VPRS6, Case No,ICC-01/04, 17 January 2006; Judgment On the Prosecutor�s Application for

Extraordinary Review of Pre-Trial Chamber 1�s Decision of 31 March 2006 DenyingLeave to Appeal, ICC-01/04-168, 13 July 2006.


provided and, second, the depth of the ICC�s involvement in thedomestic case or national reform efforts. Overall, the OTP will need tobalance the potential benefits of any assistance or involvement innational proceedings intended to improve the ability of national judi-ciaries to undertake their own prosecutions with the downstream legalrisks that may result from such a strategy.

A number of tactics are available to the Court where it decides topursue domestic capacity building efforts. First, the OTP may wish toshare legal resources, analysis, and information with national gov-ernments or judiciaries. Where a national judiciary is unable toprosecute because it lacks particular legal resources, investigativeinformation, or analysis tools, the OTP may be able to catalyzedomestic prosecutions by providing access to publicly availableinformation, analysis of such information, or even case files that theOTP has decided not to pursue further. Second, the OTP may wish todevelop and disseminate clear standards and best practices for thedomestic prosecution of international crimes. Such standards andcodes of best practices are already playing an important role in otherareas of international law.49 Third, the OTP may, at times, choose toprovide direct technical assistance to States unable to prosecute. Suchactivities present the greatest danger of resource diversion anddownstream admissibility challenges so must be pursued with utmostcaution. Where States need specific, but limited, technical assistance,the OTP may consider such requests, bearing in mind resource lim-itations, mandate, and potential legal implications.50 In many cases,to minimize the potential for admissibility challenges assistance may

49 In Security Council Resolution 1377 (2001), the Council refers to �best practices�that may assist states in implementing the resolution. Subsequently, a Directory ofInternational Best Practices, Codes and Standards for the Implementation of

Security Council Resolution 1373 (2001) was promulgated. See Security Council,Counter Terrorism Committee, Directory of International Best Practices, Codes andStandards for the Implementation of Security Council Resolution 1373 (2001),

available at http://www.un.org/sc/ctc/bestpractices.shtml (last visited 28 Nov. 2006).Such best practices and codes of conduct have been useful in other areas of inter-national law. The UN Global Compact represents a more formal code of best

practices for corporate responsibility. See United Nations Global Compact, availableat http://www.unglobalcompact.org (last visited 28 Nov. 2006); Sean D. Murphy,Taking Multinational Codes of Conduct to the Next Level, 43 COLUM. J. TRANSNA-

TIONAL L. 389 (2005).50 The ICTY has taken this approach, providing a variety of training sessions,

usually through involvement of ICTY experts in programs organized by third par-

ties. See Interview with Matais Hellman, ICTY Public Affairs Officer, in Sarajevo,Bosn. & Herz. (5 Aug. 2005).


be best provided through general seminars or trainings for nationalofficials conducted in The Hague rather than through an on-sitemission.

The ability of the OTP to directly enhance national judicialcapacity as part of a policy of positive complementarity is clearlylimited and, perhaps, even risky. Yet, compared to other tribunals,the ICC has an important structural advantage that may allow it topromote domestic judicial development without the need to under-take such activities itself. The Court�s position on the global stage andvast array of NGOs that have developed around it might allow theOTP to play a powerful role in networking, resource generation, andagenda setting to promote domestic judicial reform.51 By mobilizingsuch resource networks, the Court may be able to leverage its ownresources to promote capacity building far more efficiently than itcould by implementing such programs itself. Such a networkedapproach fits closely with the Prosecutor�s existing strategies. As henoted to the diplomatic corps in The Hague in 2004, the Office willrely �on extensive networks of support with States, civil society,multilateral institutions, academics and the private sector. Thisapproach enables us to better represent 92 States Parties and tobenefit from ideas and perspectives from around the world.�52

Likewise, such a network-based approach recognizes that otherinstitutions and organizations may be more effective and efficient inproviding aid to national judiciaries than would the OTP itself. Localand international NGOs, inter-governmental organizations, andStates themselves may have greater resources, experience and abilityto facilitate domestic judicial capacity building.53 For example, therecently created Justice Rapid Response Initiative is able to provideimmediate assistance to States seeking to undertake investigations ofinternational crimes but without the domestic resources to do so.54 A

51 Such NGOs include, for example, The Coalition for the International CriminalCourt, (http://www.iccnow.org); Parliamentarians for the International Criminal

Court (http://www.pgaction.org), and the International Center for TransitionalJustice (http://www.ictj.org).

52 Statement of the Prosecutor, Luis Moreno Ocampo to the Diplomatic Corps,

12 Feb. 2004, available at http://www.icc-cpi.int/library/organs/otp/LOM_20040212_En.pdf (last visited 28 Nov. 2006).

53 For a discussion of the potential of such networks in the enforcement ofinternational criminal law, see Turner, supra note 31.

54 See Justice Rapid Response Initiative White Paper, available at http://

www.aiad-icdaa.org/lnci/Justice%20Rapid%20Response%20Report%20Aug%2004.pdf (last visited 28 Nov. 2006).


number of national governments have developed special officeswithin their ministries of justice for the prosecution of internationalcrimes, which regularly provide assistance to other States.55 Even theU.S., traditionally an opponent of the ICC, might well be willing toprovide assistance to national governments undertaking their ownprosecutions and has considerable capacity to do so.56 Such nationalgovernments may also have greater financial resources than the ICCto devote to domestic judicial reform programs.57

IV. POSITIVE COMPLEMENTARITY AND THE DIVISIONOF LABOR WITH STATES

A third situation in which a policy of positive complementarity maybe appropriate is where the Court and national authorities cooperatein the prosecution of international crimes through a division of labor.From a legal perspective, the division of labor may be a relatively rareoccurrence because the ICC is unable to act where national govern-ments prosecute themselves. A window of opportunity for a divisionof labor arises, however, when a State is able and willing to prosecuteinternational crimes generally, but is unable or unwilling to prosecutea particular suspect or case. Often for political reasons, even a judi-ciary generally able and willing to undertake prosecution of seriousinternational crimes may be unable to investigate and prosecute themost senior perpetrators of such crimes or may be unable to obtainnecessary evidence from third States with respect to particular crimes.In such a situation, the particular case not prosecuted domesticallywould be admissible before the ICC because that particular case hasnot been investigated, despite the general willingness of the nationalgovernment to act.

55 See, e.g., Bureau of Democracy, Human Rights, and Labor, U.S. Dep�t of State,Country Reports on Human Rights Practices for 2001, at 1321 (2002), http://wwwc.house.gov/international_relations/107/78290d.pdf (last visited 28 Nov. 2006)

(discussing a number of national prosecutor�s offices with such capacities).56 For information on the capabilities of the relevant US program, see What Is the

Office of Overseas Prosecutorial Development, Assistance and Training (OPDAT),http://www.thememoryhole.org/doj/opdat/opdat_mission.htm (last visited 28 Nov.2006).

57 For example, since 2001, the EU has had a multi-year e28 million judicialassistance program in operation in the DR Congo and is currently considering plansto expand that program. See Interview by Jordan Tama with Emmanuel Altit, (Dec.

8, 2003). Such a program would be far beyond even the most ambitious programs theICC could undertake.


A division of labor may also arise where the OTP seeks to pros-ecute those crimes meeting the gravity threshold articulated in Article17 and a State wishes to provide accountability with respect to lowerlevel offenders who are not likely to be the subjects of an ICCinvestigation.58 In some situations, the State may seek to providenon-criminal accountability, such as a truth-commission, for lowerlevel offenders, but the OTP and the State nonetheless divide thelabor of accountability.59 For such a division of labor to be suc-cessful, consistent communication and coordination will be needed tomaximize the collective contribution of the ICC and States towardending impunity.

While active division of labor has the potential to significantlyfurther the OTP�s goals, it also raises potential conflicts betweendomestic and international authorities. First, where the OTP and aState seek to divide labor, there is a danger that the State will free-rideon the Court�s provision of public goods in the form of investigationand prosecution. By allowing the OTP to prosecute certain individu-als, a State may benefit through reduced financial and political costsand avoid its own international legal obligations to prosecute. Hence,some governments able and willing to prosecute all crimes within theirjurisdiction may seek greater involvement from the OTP than isstrictly necessary so as to avoid bearing the burdens of prosecutionsthemselves.60 Second, active division of labor with a State may result

58 As noted above, the ICC will only prosecute those most responsible for inter-national crimes and that meet the gravity threshold of Article 17 of the RomeStatute. See Rome Statute art. 17(1)(d) (providing that a case is inadmissible if it is

�not of sufficient gravity to justify further action by the Court�). The Prosecutor hastreated this as a policy choice, more than a legal requirement, but has nonethelessemphasized that the gravity of the crime will be an important element of case

selection. See OTP of the Prosecutor, Draft Policy Paper on Criteria for Selection ofSituations and Cases (June 2006) (on file with the author).

59 For a discussion of a situation in which both domestic and international

institutions have worked together to provide accountability, see William A. Schabas,The Relationship Between Truth Commissions and International Courts: The Case ofSierra Leone, 25 HUM. RTS. Q. 1035, 1049–1051 (2003).

60 This situation may seem to conflict with the assumption at the heart of positivecomplementarity, namely that States will generally prefer to prosecute domesticallythan allow international intervention. However, there will be situations in which the

perceived sovereignty costs of international intervention are low and the political orfinancial costs of domestic action are high. In such circumstances, positive comple-mentarity is unlikely to be successful and the real danger is that national govern-

ments will seek to outsource the costs of prosecution to the ICC, allowing greaterICC involvement because of national inaction than is necessary or efficient.


in the appearance of impropriety or bias. Active division of laborrequires cooperation and often close contact with a State that can beviewed by outside observers as inappropriate for the independenceand impartiality of the OTP. Hence, active division of labor is bestpursued where the State with which the OTP seeks to cooperate hasclean or relatively clean hands. Third, active division of labor mayresult in downstream admissibility challenges, similar to those dis-cussed with respect to direct capacity building efforts. Fourth, theactive division of labor may result in conflicts with States that, in turn,lead to a less-than-efficient allocation of resources. For example, thefailure to agree in advance on the gravity threshold that separatescrimes to be prosecuted by the OTP and those to be prosecuteddomestically may create confusion or actually widen the impunity gapas certain suspects fall through the poorly defined cracks.

A final potential conflict in the implementation of positive com-plementarity through a division of labor may arise where the Stateseeks to provide non-judicial accountability for lower level offenders.The experience of the Special Court for Sierra Leone demonstratesthe possibility for misunderstandings and conflicts where truthcommissions and prosecutions operate simultaneously.61 Tensionscan develop with respect to the use of information uncovered by atruth commission in criminal proceedings. Victims and witnesses maynot understand the purposes and powers of various institutions. Suchproblems can be addressed through careful coordination and explicitsequencing of domestic and international accountability efforts.Outreach programs will need to make clear the different purposes andpowers of various institutions. Timing and sequencing of institutionalresponses can minimize conflict by, for example, completing criminalprosecutions before establishing a truth commission.

In overcoming these potential dangers and realizing the significantbenefits that may flow from a division of labor, the OTP will have tocarefully identify appropriate partner States. Generally, the OTP willonly be able to divide labor with States that have jurisdiction over thecrimes in question—most often the territorial or national State.Beyond jurisdictional considerations, the OTP should partner withStates unlikely to generate subsequent admissibility challenges—ideally States that have clean hands themselves and have independent,

61 For a discussion of the interaction of such institutions see William Schabas,Amnesty, The Sierra Leone Truth and Reconciliation Commission and the Special

Court for Sierra Leone, 11 U.C. DAVIS. J. INTL L. & Pol�y 145 (2004); Schabas, supranote 59, at 1049–1051.


effective judiciaries.62 Sometimes, the division of labor with the ter-ritorial State will be unwise and the OTP will have to considerwhether a division of labor with a non-territorial State might be anappropriate alternative.63

Despite the potential complications inherent in an active divisionof labor, sharing the burden of providing accountability for crimeswithin the Court�s jurisdiction can be an efficient and effective way toend to impunity. To maximize the potential benefits of a division oflabor, the OTP can undertake a number of specific tactics. First, theOffice should seek to avoid the free-rider scenario through careful�willingness� evaluations. Second, the Office should only engage in thedivision of labor with States with clean hands and a genuine intent toprosecute so as to minimize admissibility challenges and perceptionsof impropriety. Third, the Office should maintain a non-biased,independent stance vis-a-vis the States with which it divides labor andremain cognizant of any crimes alleged to have been committed by orwith the acquiescence of the State in question. Finally, the OTP willneed to carefully coordinate with the States with which it seeks todivide labor through ongoing dialogue. Where possible, the OTP andthe State in question should reach a non-binding strategic agreementas to which cases will be prosecuted by which institutions.64

62 Of course, States with clean hands and independent judiciaries are also thoseleast likely to need to divide labor with the ICC since they will presumably be able to

prosecute all crimes within their jurisdictions themselves. Hence, risks will have to betaken involving, on occasion, the division of labor with less than ideal partners. Suchrisks, however, must be carefully considered and the benefits of a division of labor

balanced against the potential dangers of partnering with States that may not ulti-mately undertake genuine prosecutions.

63 For example, the OTP could divide labor with the national state of the per-

petrator or a state acting under passive personality or universal jurisdiction. For adiscussion of the exercise of universal jurisdiction, see Kenneth C. Randall, UniversalJurisdiction Under International Law, 66 TEX. L. REV. 785 (1988). For contemporary

practice of universal jurisdiction see, LUC REYDAMS, UNIVERSAL JURISDICTION:

INTERNATIONAL AND MUNICIPAL LEGAL PERSPECTIVES (2003).64 Such an agreement could, for example, involve the ICC starting its investiga-

tions with those most responsible for international crimes and the State starting withlower level offenders. Alternatively, the agreement could use sequencing to allow theICC to act first and have national prosecutions follow at a later date. Such a division

of labor agreement might also cover the sharing and use of investigative files andother information between the OTP and national governments. The ICC has reachedagreements with a number of governments with respect to the exchange of infor-

mation and other forms of cooperation. These agreements could provide the basisfor more detailed cooperation should a situation involving the division of labor arise.


V. CONCLUSION

The ICC�s core mission is to end impunity for the most seriousinternational crimes. Alone, OTP can make a powerful contributionto this process by investigating and prosecuting those most respon-sible for international crimes. However, the resources and reach ofthe ICC are seriously limited and the Court alone cannot endimpunity all together. It is only through effective investigation andprosecution by States themselves, as envisioned in the preamble of theRome Statute, that wide-spread accountability can be ensured.Positive complementarity provides an important mechanism forcatalyzing and coordinating national efforts to provide accountabilityso that the ultimate goals of the Rome System can be achieved in themost effective and efficient means possible.

The legal basis for such a policy is both implicit and explicit in theRome Statute of the ICC. Its potential to promote the ultimate goalof the Rome Statute—ending impunity—is very real. It is time thatthe OTP formally adopt such a strategy as a core element of theOffice�s operations. The development of a policy of positive com-plementarity may well require the ICC to move beyond its presentpolicies and practices, but it offers the best potential for the Court tomake a meaningful contribution toward ending impunity. Withoutcompromising the OTP�s ability to investigate and prosecute inter-national crimes, the development of a policy of positive comple-mentarity will be critical to ensuring the ICC�s ultimate success. Thedifficulty is in the details of implementation. A uniform strategy ofpositive complementarity across all States is unlikely to be effectiveand may well result in wasted resources and a diversion of effort fromdirect investigations and prosecutions. A carefully tailored strategy ofpositive complementarity that responds to the underlying reasonsbehind the failure of States to act themselves, perhaps based aroundthe framework presented here, offers a significant opportunity for theOTP to meet the objectives of the Rome Statute and make thebroadest possible contribution toward ending impunity.


Implementing a Policy of Positive Complementarity in the Rome System of Justice

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