The ICC has come under sustained attacks for a disproportionate focus on crimes in Africa, discrediting the Court’s mandate amid accusations of bias. By looking inwardly and by actualising the ‘complementarity principle’, the new Chief Prosecutor Karim Khan has an opportunity to strengthen municipal criminal courts’ capacity for trying atrocity crimes, which could thereby enhance the legitimacy of the ICC as the Court of last resort

Wambua, Muema

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Muema Wambua August 11th, 2021The ‘complementarity principle’ could increase the ICC’s globallegitimacy1 comment | 7 sharesEstimated reading time: 5 minutesThe ICC has come under sustained attacks for a disproportionate focus on crimes inAfrica, discrediting the Court’s mandate amid accusations of bias. By looking inwardlyand by actualising the ‘complementarity principle’, the new Chief Prosecutor KarimKhan has an opportunity to strengthen municipal criminal courts’ capacity for tryingatrocity crimes, which could thereby enhance the legitimacy of the ICC as the Court oflast resort.Since its inception in July 2002, the International Criminal Court (ICC) faced criticism on claimsthat it had only concentrated its investigations in Africa. While the Court has now openedinvestigations beyond the continent, it is time the new Prosecutor QC Karim Khan lookedinwardly and, speci cally, prioritised the ‘complementarity principle’ – where a case isinadmissible if it is under investigation by a state with jurisdiction over it. Indeed, the ICC, aspremised in its founding Statute, is a court of last resort.In its many cases and situations, the Court has, however, remained at the centre-stage ofinvestigations, oftentimes relegating the complementarity principle that asserts the centralityof municipal criminal courts. As a result, State Parties and non-State Parties underinvestigation by the Court have abrogated their core responsibility of prosecuting internationalcrimes via municipal criminal courts, amounting to an obvious dereliction of judicial obligation.The complementarity principle, as de ned by the Statute, does not envision a situation wherenational jurisdictions will halt investigations and prosecutions and relegate and/or delegatetheir sovereign mandate to the ICC. Considering the gravity of atrocity crimes, thecomplementarity principle envisions a situation where the ICC would prosecute perpetratorswho hold the highest culpability, while national criminal jurisdictions would perhaps prosecuteother perpetrators who may not. Per the statute, the ICC should only exercise jurisdiction whenstates are unwilling or unable to investigate and prosecute using their national criminalsystems. In con ict settings where the ICC has opened cases, alleged perpetrators who werenot identi ed to have held the highest culpability by the Court have on many occasions notbeen prosecuted by national criminal jurisdictions, amounting to miscarriages of justice.Luis-Moreno Ocampo’s political test in KenyaWhen the ICC opened the two cases in March 2010, following the electoral con ict in 2007-8,the Kenyan state had made deliberate attempts to prosecute the perpetrators. Thedomestication of the Rome Statute through the enactment of the International Crimes Act2008 depicted attempts by Kenya to cooperate with the ICC, besides amendments to otherlegal frameworks including the Witness Protection Act 2010. The failure of Parliament to enactthe Special Tribunal for Kenya, as recommended in the Judge Philip Waki-led Commission ofInquiry on Post Election Violence report, paved the way for the ICC process in the country.The O ce of the Prosecutor, led by Luis-Moreno Ocampo, opened the case of Kenya propriomotu, which relegated the complementarity principle as there were no national criminaljurisdictions ongoing by the time the Court opened the cases. Ocampo promised that ‘Kenyawill be a world example on managing violence’ – remarks that gained support in the country.Municipal criminal courts, however, relegated their initial efforts to investigate the perpetrators,including mechanisms such as the International Crimes Division of the High Court of Kenya setto try international crimes. The eventual withdrawal and vacation of charges by the ICC, in thetwo cases in 2015 and 2016, respectively, brought to a halt the quest for justice for victims andperpetrators.Fatou Bensouda in the Côte d’IvoireThe opening of the case in Côte d’Ivoire in 2015, following atrocities committed during the2011 electoral con ict by supporters of President Alassane Ouattara and forces loyal to formerPresident Laurent Gbagbo, depicted how the complementarity principle might perhaps be besttested. Following a referral by the UNSC, Bensouda’s opening of the Gbagbo case and thesubsequent acquittal decision in January 2019, which was appealed in September 2019 withthe acquittal con rmed in March 2021, demonstrates why the complementarity test may needrevisiting. Where the ICC fails to successfully prosecute perpetrators holding the highestculpability, it must be ensured that victims of atrocity crimes  nd remedy throughcomplementary municipal criminal court mechanisms.While the municipal courts in Côte d’Ivoire initiated investigations that led to prosecutions, forinstance in the case of senior politician Simone Gbagbo, her eventual acquittal by an Ivoriancourt over crimes against humanity charges, as well as the general amnesty served to her andother members of the Ivorian Popular Front party by President Ouattara, shows how municipalcourts may be in ltrated by amnesty petitions even in situations where perpetrators areaccused of committing atrocity crimes. Such amnesties for perpetrators of atrocity crimes,while meant to advance peace and reconciliation in post-con ict settings like in Côte d’Ivoire,may be a contradiction of jus cogens norms.Looking beyond Africa?More recently, the O ce of the Prosecutor’s effort to cast its net beyond situations in Africahas re-invigorated the Court’s ‘international’ outlook. This followed initial calls questioning thelegitimacy of the ICC, for instance, when South Africa, Burundi and The Gambia deposited theirnoti cations for withdrawal from the Rome Statute in 2016 and in 2017, as well as the AfricanUnion’s non-binding decision at the Annual Heads of States Summit in Addis Ababa in February2017 that called for mass withdrawal of members.African members in the ICC’s oversight body, the ASP, argued about Africanisation of the Court,critiquing it for remaining non-committal in opening up cases in situations where the West hasopenly committed atrocity crimes – for instance the US interventions in Afghanistan (2001-),Iraq (2003-), Syria (2011-) and Libya (2011-). Israel’s continued occupation and the associatedatrocities committed in the Palestinian Authority territories further illuminates concerns raisedby the African states in the ASP that the ICC is ‘unable’ or ‘unwilling’ to institute investigationsin situations triggered by the powerful Western regimes and their allies.The lobbying for reforms of the Court may have nevertheless contributed to the opening ofinvestigations beyond Africa, for instance in Georgia (2016), Afghanistan (2017), Palestine(2018) and Bangladesh/Myanmar (2019) – the latter case was also  led by The Gambia at theInternational Court of Justice. This has debunked the accusations of bias championed by theAfrican Union in Addis Ababa, and by political commentators in Nairobi, which alleged that theCourt is an imperial agency for political colonialism.The complementarity principle as a route to legitimacyWhile the Court has opened more cases beyond Africa, the ICC success will be de ned notonly by the cases it has effectively investigated but also by the number of legitimate cases ithas not, which have successfully been investigated by municipal criminal courts through thecomplementarity principle. Instead of opening more investigations, the Court should perhapsreview its tact and work towards revitalising municipal criminal courts to strengthen internalstructures for their own investigations and prosecutions of atrocity crimes, with a view toactualising the complementarity principle.Claims of non-cooperation and witness interference, as argued for instance in the situation inKenya, demonstrate how the Court can lead to miscarriages of justice, especially in situationswhere municipal courts fail to initiate complementary investigations. While these cases arepivotal in its mandate, the Court could work towards initiating outreach programmes with StateParties to enhance judicial reforms of municipal courts. Although supporting municipal judicialreforms may redirect the Court from its perceived core obligation, i.e. investigating andprosecuting mass atrocity crimes, at present the Court lacks su cient technical resourcecapacity to investigate and timely prosecute the many protracted cases already straining itssystem, not to mention new settings of atrocity crimes in the international system.The Court should hence look inwardly by partnering with State Parties to strengthen municipalcriminal courts to independently investigate and prosecute alleged perpetrators of atrocitycrimes. Only as a last resort should the Court open new investigations. Revitalising the Court’scooperation framework with the UN will be essential for this endeavour, perhaps byincorporating the Responsibility to Prevent element of the Responsibility to Protect regime inits outreach structures with a view towards averting atrocity crimes.Photo: ICC Bar Association President Karim Khan moderating the Closing Panel at the ICTYLegacy Symposium. Credit: UN International Criminal Tribunal for the former Yugoslavia.Licensed under CC BY 2.0.About the authorPosted In: Human Rights | International Affairs | RecentMuema Wambua is the author of ‘Historical Injustices and Transitional JusticeInterventions in Kenya: Victims’ and Interveners’ Experiences and Perceptions’ Journal ofthe British Academy, 9(s2): 75-102 (2021), ‘Transitional Justice and Peacebuilding: TheICC and TJRC Processes in Kenya’ African Con ict and Peacebuilding Review, 9(1): 54–71(2019), and ‘The Ethni cation of Electoral Con icts in Kenya: Options for Positive Peace’African Journal on Con ict Resolution, 17(2): 9–40 (2017). @MuemaWambuaPhDMuema Wambua

The ‘complementarity principle’ could increase the ICC’s global legitimacy

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The ‘complementarity principle’ could increase the ICC’s global legitimacy

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