, NAIROBI, Kenya, Feb 3 – Legal experts say a key principle that seeks to encourage domestic prosecutions in place of or alongside trials at the International Criminal Court (ICC) in The Hague is simply not working.
The concept of “complementarity” is written into the ICC’s founding document, the Rome Statute, and envisages a system where The Hague court prosecutes those deemed most responsible for crimes in a given context, while cases against mid- and lower- level perpetrators are taken up by the local judiciary.
As a court of last resort, the ICC does not have primacy of jurisdiction over states, and only steps in where a country is unable or unwilling to prosecute perpetrators of international-scale crimes – crimes against humanity, war crimes and genocide.
The court itself has repeatedly underlined the importance of local prosecutions to complement trials in The Hague, so that the system of international justice encompasses both the ICC and national courts.
“The Rome (Statute) system embraces not just this court we have at The Hague, but the entire judicial apparatus of all the countries that are parties to the Rome Statute,” James Stewart, the ICC’s deputy prosecutor, told Capital FM News. “Developing that capacity is going to be critical to the future.”
The ICC is currently conducting investigations in eight countries, all of them in Africa – Uganda, Sudan, the Central African Republic, the Democratic Republic of Congo, Kenya, Libya, Ivory Coast and Mali.
Critics have long argued that cases in The Hague are processed far too slowly. But they say the record of countries launching their own prosecutions is even more lamentable.
According to Alex Whiting, a law professor at Harvard University and a former member of the ICC’s Office of the Prosecutor, “there is real cause to be concerned” because prosecutions at local level have barely got off the ground.
“I think it’s hard to be very encouraged on how we have done,” he said.
National Justice Seen As Better Than ICC
The consensus among experts is that local prosecutions offer a number of advantages over proceedings at the ICC.
Whiting points out that using a country’s domestic courts allows states to protect their sovereignty and grounds justice in the place where crimes occurred.
“(Trials) have more credibility if they are done at the national level,” he said. “Secondly, justice is also brought home to the victims, to the witnesses, to the survivors and to the country.”
Holding local trials also enables national jurisdictions to support the ICC with much-needed evidence to help prosecute senior level perpetrators in The Hague.
“The evidence that is developed through those (local) prosecutions will be required for the prosecution of those senior people,” Whiting said. “That’s a very difficult leap to make if there are no broader investigations on the ground.”
Since the ICC issued its first arrest warrants in 2005, efforts to put the principle of complementarity into practice have had limited success.
In Uganda, the government has established an international division of the country’s high court to tackle atrocities committed during the 20-year insurgent war pursued by the Lord’s Resistance Army (LRA) in the north of the country.
The ICC has charged five senior LRA leaders with multiple counts of war crimes and crimes against humanity. But experts have a number of concerns about the local court, which only has a mandate to prosecute former rebels and cannot investigate other parties to the conflict, such as government troops.
So far, the international division has only brought charges against one former rebel, and this case was thrown out when judges decided that the defendant came under Uganda’s amnesty law. (See Uganda Future of War Crimes Trials in Question http://iwpr.net/report-news/uganda-future-war-crimes-trials-question.)