I. Structuring the ICC Regional Circuit Chambers

The proposed circuit structure is inspired by the U.S. federal court system’s own circuit/district structure.6 Per Article 39(2) of the Rome Statute, which provides that the Court’s judicial functions must be carried out by Chambers, nothing precludes:

[T]he simultaneous constitution of more than on Trial Chamber or Pre-Trial Chamber when the efficient management of the Court’s workload so requires.7

At least in theory, the Rome Statute envisages the possibility of breaking down the Court’s work.

Each regional circuit chamber would have jurisdiction over crimes committed in the territory of the States Parties within to the geographic boundaries of the circuit. The circuits could correspond to continents, but given that some continents have few signatories (e.g., Asia), and others have many (e.g., South America, Africa, etc.), smaller circuits may be preferred. The cost associated with the functioning of a greater number of circuits would have to be balanced against the benefits associated with smaller but more representative circuits. Each regional circuit chamber would follow the current institutional structure, i.e., it would comprise a Pre-Trial Chamber, a Trial Chamber, an Appeal Chamber, and an OTP.8 The seat of each circuit chamber would be in the territory of a contracting party and within the territorial jurisdiction of that circuit chamber. An effort should be made to staff the most important positions within each circuit, such as the Prosecutor and judges, with nationals of the States Parties within the circuit, though this may not always be possible.9 Article 36 of the Rome Statute, which mandates a bench of eighteen judges, presents an issue, since this number would prove inadequate for the circuit structure. However, Article 36(2) lays out the process for expanding the number of judges via simplified amendment to the Rome Statute, requiring a two-thirds majority in the Assembly of States Party (ASP).10

Each regional circuit’s Prosecutor would have the rank of a Deputy Prosecutor. Since the Rome Statute does not specify the number of Deputy Prosecutors, there would be no need for an amendment to accommodate an increase in their number (currently, there are two).11 And since, Deputy Prosecutors are “entitled to carry out any of the acts required of the Prosecutor under this Statute”12 and “on a full-time basis,”13 no amendment is required to appropriately empower the Deputy Prosecutors in each circuit. The powers and functions of each Pre-Trial regional circuit chamber, each Trial regional circuit chamber and each Appeal regional circuit chamber will remain the same. The ICC’s current structure, i.e., the bench of all the judges, might serve as a final court of appeals. It could resolve certain circuit splits on issues fundamental to the Rome Statute, rule on issues of concurrent jurisdiction among the regional circuit chambers or other procedural matters, etc.

Many major amendments, not mentioned above, would naturally have to made to set up these regional circuit chambers. These amendments would be based on Article 122, which deals with changes to the Rome Statute that are “of an exclusively institutional nature.”14 Any state party may propose the amendments, which would then have to be accepted by consensus, failing which the ASP or a Review Conference must adopt them by a two-thirds majority.15 Under Article 122(2), amendments shall automatically come into force six months after their adoption and will become binding on all States Parties, meaning that parties which disagreed must follow the wishes of the majority.16 Naturally, these dissenting parties might choose to withdraw from the Rome Statute, so consensus would be much preferable.

Of course, achieving this consensus or two-thirds majority will not be a straightforward task. African parties might be the most amenable to compromise, since the circuit structure seeks to address concerns raised during the threatened African Withdrawal. Moreover, the circuit structure goes directly to Kenya’s statement to the ASP Working Group of Amendments in 2015, that it wishes to propose an amendment “to ensure that the principle of complementarity sufficiently recognizes regional criminal judicial mechanisms,” in part by “allow[ing] judicial proceedings to take place closer to the location where the alleged crimes had been committed.”17 Kenya does not appear to have put forward an amendment to that effect, and it might be the ideal candidate to propose the circuit chambers.18

It must be noted that though this proposal would significantly alter the structure of the ICC in service of complementarity, it does not in fact, seek to amend the principle of complementarity as laid out in Article 17. The circuit structure certainly takes stock of the Prosecutor’s broader understanding of the meaning and goals of the principle, but it would still be bound to Article 17 -complementarity. Therefore, all states would be obliged to prosecute and try crimes themselves before resorting to the ICC, and the Deputy Prosecutors and Prosecutor should continue to be mindful of this obligation.

II. The Circuit Structure Benefits the Principle of Complementarity

The principle of complementarity plays an important role in protecting the diversity of domestic and regional systems of justice. It does this by giving primacy to domestic courts to prosecute crimes and allowing great leeway in how they conduct their proceedings. But when domestic courts cannot or do not prosecute, and the OTP steps in, the deference to traditional forms of justice vanishes. For instance, the intervention of the Prosecutor in the situation in Uganda was roundly criticized for providing only partial justice to victims of the Lord’s Resistance Army.19 Local community leaders and victims placed a greater emphasis on ideals of restorative, rather than punitive, justice in their communities, which the Rome Statute and most Western systems of justice, do not contemplate. As one traditional leader observed: “There is a balance in the community that cannot be found in the briefcase of the white man.”20 Another elder stated:

If [the LRA leaders] are taken to The Hague, they will be locked up with air conditioning and will live the lifestyle of Ugandan ministers. But they will have to come here and make up with the community. Let them live with the people whose ears they have chopped off. Let them see for the rest of their lives what suffering they have caused. That is punishment. In our view, ICC punishment is light. Let them morally come and confess.21

Sarah Nouwen, who conducted many interviews in Uganda in relation to the LRA insurgency, explains that:

International criminal justice, unlike traditional justice, fails to reconcile the offender with the spirits of the offended persons.22

Traditional justice did achieve some recognition in the Juba negotiations. Referring to traditional Acholi, Langi and Madi procedures, the Accountability Agreement provides that:

Traditional justice mechanisms, such as Culo Kwor, Mato Oput, Kayo Cuk, Ailuc and Tonu ci Koka and others as practiced in the communities affected by the conflict, shall be promoted, with necessary modifications, as a central part of the framework for accountability and reconciliation.23

However, it was the Special Division of the High Court, provided for by the Accountability Agreement to deal with the most serious crimes, and not traditional justice that was designated to meet ICC’s complementarity standards.24 Nevertheless, attention to traditional forms of justice in an otherwise Westernized legal context is noteworthy, and an excellent example of the complementarity that the ICC itself should, and nearly did, aspire to.

The regional circuit structure’s primary benefit is that it would efficiently facilitate this ambitious kind of complementarity. It is simply not possible for an institution to properly take account of the traditional practices, and their viability and acceptance within the community as systems of justice, while sitting in The Hague. A smaller circuit, staffed by people familiar with traditional practices and headquartered in the region, would have a much better shot at syncretizing the demands of the Rome Statute with the victims’ expectations of justice. Incorporating this degree of cultural relativism demanded by the principle of complementarity, as envisioned by the OTP, would make the ICC in Africa a truly African institution, run by and for Africans.

But, the indicia of complementarity include more than the formalistic recognition of traditional justice. The true incorporation of regional networks and modes of justice (in conformity with the Rome Statute) requires effective outreach into affected communities on the ICC’s part. Indeed, the ICC’s operation, legitimacy and public impact in general depend on how much communities affected by violence understand the Court.25 Communities that are shut out of the dialogue around the ICC may be unsupportive or unable to come forward and participate in proceedings,26 or advocate for recognition of traditional forms of justice. The ICC’s outreach programs have in the past had some effect: Successive research in the eastern part of the Democratic Republic of Congo (the site of an ICC situation) conducted in 2008 and 2013 show, for example, that awareness about the existence of the ICC rose from 28% to 54% of the adult population.27 This achievement is largely attributable to the ICC’s outreach efforts, local NGOs and expanded coverage by the media.28 Yet, in 2013, just 9% of respondents in that region of the DRC described their knowledge of the ICC as a “good” or “very good.”29 The authors who conducted this research emphasized the need for “localized outreach” predicated on “defin[ing] and understand[ing] their target audience,” a thorough knowledge of “the characteristics and information and communication needs of the target groups,” and an understanding of the “cultural[] appropriate[ness]” of the outreach.30 The researchers also explained that the “results of the outreach must be measured against realistic expectations.”31 In sum, effective outreach and integration of traditional forms of justice requires a thorough understanding of the facts on the ground; it requires effective collaboration with local media, local NGOs and other local organizations, and it requires an intimate knowledge of the local cultures, expectations and practices. A regional circuit court would be better placed in this regard than the unitary ICC currently is. The principle of complementarity can only be served by the regionalization of the Court.

There are some other efficiencies that the circuit structure would afford the general functionality of the Court. A well function Court would, in turn, make the incorporation of “national and international networks”32 into the working of the Rome Statute much more palatable to other regional organizations. For instance, a decentralized circuit structure would allow for easier evidence gathering for OTP investigations and for use in judicial proceedings. Practical issues associated with getting witnesses to testify in the Netherlands, thousands of miles away from their home, would be largely resolved if they had only to travel the relatively shorter distance to the headquarters of the regional circuit. It might even be possible for the Court to travel to the witnesses or the specific territory where the crime occurred, in true circuit fashion. But, as researcher Susana SáCouto explains, the efficient gathering of evidence also requires an “ongoing communication and dialogue”33 between the Court and first responders, which are typically NGOs like the Seruka Health Center, set up by Médicins Sans Frontières in response to conflict-related sexual violence in Bujumbura, Burundi.34 This dialectic is imperative in educating first responders about the types of information most helpful to investigations and prosecutors trying ICC crimes. According to SáCouto, encouraging first responders to collaborate with the ICC “requires that the OTP identify and pursue opportunities to foster mutual respect and understanding, and build trust, with first responders,” who might otherwise be wary of working too closely with the ICC.35 Broadly, the task of establishing a strong and stable dialectic with regional organizations on the ground would greatly benefit from the regionalization of the Court itself, and would advance the broad principle of complementarity.

III. Potential Criticisms of the Proposed Circuit Structure

Doing away with the ICC’s unitary structure is undoubtedly an ambitious proposal that will not be easy to implement. In Part I, I discussed one major legislative hurdle that proponents of the circuit structure will have to overcome: securing a consensus, or at least a two-thirds supermajority, in the ASP. Amending the Rome Statute to this extent will be a costly endeavor. The negotiations themselves will likely take several years of work, even before the implementation of the circuit system around the world. But, any such proposal is not doomed to be an exercise in futility. The Rome Statute has been amended before, most notably by the addition of crimes of aggression to the substantive jurisdiction of the Court in December 2017.36 Unlike that amendment, amendments relating to the circuit structure would not modify the jurisdiction of the Court, the very heart of the Rome Statute. They would not alter the Court’s powers or the obligations of the States Parties. They would not even distort the principle of complementarity as described in Article 17, central as it was to securing the support of the original parties to the Rome Statute. Communicating the proposal as an internal reorganization, rather than as a fundamental recharacterization, of the ICC would go a long way in making the proposal more acceptable to the States Parties, especially if it is emphasized that the reorganization is in the interest of the principle of complementarity already enshrined in the Rome Statute.

Beyond its feasibility, it might also be argued that the circuit structure represents an intolerable, neo-colonialist encroachment of the ICC, an ostensibly Western institution, into the internal affairs of formerly colonized States Parties. Whereas the ICC in its current form operates in, say, Africa from a distance and is constrained by its unitary structure from interfering too intimately in the affairs of African states, bringing the Court into the territories of States Parties and the very heart of Africa, would be an imposition. I would argue, however, that far from reconstructing a colonial past, the circuit-structure actively works against it by empowering African states and their people to administer international criminal justice as they see fit. Ingrained within the current form of the Rome Statute is an element of hubris: the assumption that international justice, as it has always been envisioned and developed in the West, is applicable everywhere and to all cultures. The attitude of the victims and their communities in Uganda, as discussed above, lays waste to such a suggestion.

A circuit, because it would be a regional organization, would be better at recognizing and complementing forms of justice that the victims themselves would recognize; it is a waste of resources and a true imposition to execute justice that has no bearing on the culture framework that the victims operate in. The circuit structure can efficiently accommodate diverse modes of justice that are not compatible with each other, but are nonetheless recognizable to the people within each circuit. At the same time, the proposed circuit structure, like the current unitary structure, would continue to secure principles of international justice that the States Parties, especially those in Africa, signed up for.37 Abandoning the ICC’s unitary structure does not mean abandoning its core mission of prosecuting mass atrocities; rather, it means giving victims and communities the space and ability to see justice done in a forum and form that they recognize.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, ICC-02/04-01/05, Decision on the admissibility of the case under article 19(1) of the Statute, ¶ 34 (Mar. 10, 2009), available online. ↩

2. 2.

   Sarah Nouwen, Complementarity in Uganda: Domestic Diversity or International Imposition?, in The International Criminal Court and Complementarity: From Theory to Practice 1120, 1121 (Carsten Stahn & Mohamed M. El Zeidy eds., 2011), paywall, doi. ↩

3. 3.

   Office of the Prosecutor, ICC, Report on Prosecutorial Strategy 5, 16 (Sep. 14, 2006) [hereinafter Prosecutorial Strategy], available online. ↩

4. 4.

   Patrick Vinck & Phuong N. Pham, The Content, Strategies and Methods of Outreach and Public Information Must be Based on Evidence, Localizing Outreach and Responding to the Needs and Expectations of Heterogeneous Communities Affected by Mass Violence, ICC Forum (Feb. 17, 2015), available online. ↩

5. 5.

   Bing Bing Jia, The International Criminal Court’s Relations with the United Nations, ICC Forum (Jun. 28, 2018), available online; Konstantinos D. Magliveras, The Withdrawal of African States from the ICC: Good, Bad or Irrelevant?, 66 NILR 419 (Nov. 2019), available online, doi. ↩

6. 6.

   Magliveras, supra note 5, at 433. ↩

7. 7.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 39(2)(c), available online. ↩

8. 8.

   Cf. id. Art. 34; see Magliveras, supra note 5, at n.91

   (explaining that a separate Registry for each circuit would not be necessary). ↩

9. 9.

   It may not be possible to have a circuit entirely staffed by representative nationals local to the circuit, at least initially and especially if the circuit is small, since there may not be enough candidates for each position. ↩

10. 10.

    Rome Statute, supra note 7, at Art. 36(2). ↩

11. 11.

    See Press Release, ICC, ICC Deputy Prosecutors to be sworn in on 7 March 2022: Practical information (Mar. 1, 2022), available online. ↩

12. 12.

    Rome Statute, Art. 42(2). ↩

13. 13.

    Id. ↩

14. 14.

    Id. Art. 122(1). ↩

15. 15.

    Id. Art. 122(2). ↩

16. 16.

    Id. ↩

17. 17.

    Assembly of States Parties, ICC-ASP/14/34, Report of the Working Group on Amendments, ¶ 18 (Nov. 16, 2015), available online. ↩

18. 18.

    Assembly of States Parties, ICC-ASP/15/24, Report of the Working Group on Amendments, ¶ 20 (Nov. 8, 2016), available online; Assembly of States Parties, ICC-ASP/16/22, Report of the Working Group on Amendments, ¶ 26 (Nov. 15, 2017), available online; Assembly of States Parties, ICC-ASP/17/35, Report of the Working Group on Amendments, ¶ 16 (Nov. 29, 2018), available online. ↩

19. 19.

    Nouwen, supra note 2, at 1131. ↩

20. 20.

    Id. ↩

21. 21.

    Id. at n.38. ↩

22. 22.

    Id. at 1131. ↩

23. 23.

    Id. at n.45. ↩

24. 24.

    Id. at 1137. ↩

25. 25.

    Vinck & Pham, supra note 4. ↩

26. 26.

    Id. ↩

27. 27.

    Id. at n.4. ↩

28. 28.

    Id. at 67. ↩

29. 29.

    Id. ↩

30. 30.

    Id. at 68. ↩

31. 31.

    Id. at 69. ↩

32. 32.

    See Prosecutorial Strategy, supra note 3. ↩

33. 33.

    Susana SáCouto, Encouraging First Responders to Collaborate with the International Criminal Court and Improving their Capacity to Obtain Information so that it may be Used for Investigations or in Judicial Proceedings Involving Sexual and Gender Based Crimes, ICC Forum (Apr. 12, 2016), available online. ↩

34. 34.

    Id. at 26. ↩

35. 35.

    Id. at 35. ↩

36. 36.

    Crime of Aggression—Amendments Ratification, ASP (Feb. 28, 2019), available online. ↩

37. 37.

    See Kamari Maxine Clarke, Is the ICC Targeting Africa Inappropriately or Are There Sound Reasons and Justifications for Why All of the Situations Currently Under Investigation or Prosecution Happen to Be in Africa?, ICC Forum (Mar. 17, 2013), available online

    (explaining that African states had strong incentives to sign on to the Rome Statute, despite the Statute’s inherent systemic bias against African states). ↩

The question presented by the Office of the Prosecutor (OTP) is what role regional organizations may play to help implement the principle of complementarity. More pointedly, the goal of this inquiry should be to determine if regional organizations can provide a viable means to increase the administration of justice locally, thereby alleviating the burden on the resource-constrained OTP and promoting a wider, more expedient application of justice.9 A key question in this analysis is whether regional organizations are actually effective at preventing future atrocities or helping bring perpetrators to justice. If they are, then the international community should dedicate more resources and deference to regional organizations. If they are not, then the international community should rethink how much funding and political support it dedicates to such entities. Also worth considering are the practical limitations in the administration of justice and the extent to which the international community has the power to compel regional organizations, and national governments where atrocities take place, to act. Consideration of such limitations should be a factor in the decision-making process of the international community, i.e., if the international community has limited ability to compel national governments directly, then even if regional organizations are only moderately effective at preventing atrocities through complementarity, it would still be in the interest of justice to expand their role. Conversely, if particular regional organizations—such as the AU—have shown an inclination to help perpetrators evade justice altogether, then they are in fact operating to the detriment of justice and complementarity.

This comment argues that, theoretically, regional organizations can have an impact on the prevention of atrocities and promote complementarity, however, this impact depends significantly on how much power they wield and their integrity, both of which are factors that vary greatly by entity. Where regional organizations can compel national governments to act—such as by withholding funding in the case of Development Banks, or shaming them into action in the case of regional bodies—they have the potential to effectively promote of justice. However, this potential will only come to fruition when the members of a regional organization are motivated to act consistently and with integrity. Otherwise, such entities may inhibit the administration of justice by obfuscating the authority of the ICC and otherwise obstructing the international community’s attempts to prevent atrocities. This occurs when regional organizations’ conduct serves to legitimize and fund the activities of human rights violators, as well as when regional organizations seek to prevent the extradition of people indicted by the ICC on illegitimate grounds. Development Banks and the AU appear to be following this harmful path, to the detriment of justice.

II. Development Banks and Other Regional Organizations Fail to Adequately Consider Crimes When Making Funding Determinations

Development Banks, funded primarily by multilateral funding agencies such as the World Bank and the IMF,10 minimally consider violations of Article 5 Crimes when authorizing loans or granting loan forgiveness.11 Whereas some of these entities have safeguards to prevent and punish corruption by State actors, which threatens repayment, they often fail to adequately consider war crimes, crimes against humanity, and genocide; as in practice, promoting human rights are not their central objective. In a similar fashion, the ICC fails to significantly consider corruption when investigating and prosecuting crimes that fall under its jurisdiction, or admitting new States Parties.12 Similarly, the United Nations often fails to consider for human rights records when appointing States to human rights oriented committees. This failure to coordinate on issues of economic and humanitarian justice creates a gap in the fragmented international legal system that leads to the proliferation of injustice in both forms. Yet, the two are closely interlinked as repressive regimes often depend on the access to capital provided by Development Banks and other international organizations. While such financial institutions do not promulgate law as traditional hard law, they occupy an increasingly significant realm of soft law that influences how States behave with each other and with their constituents.

Additionally, many financing institutions have administrative processes that resemble tribunals, which should give them the ability to control the actions of States and officials within State governments.13 Failing to comply with the rules promulgated by ones of these Development Banks’ financing facilities can lead to a State being deemed not credit worthy and losing the good creditor status necessary to obtain continuous flows of Foreign Direct Investment (FDI), or capital invested from abroad that is used domestically to build infrastructure, start new businesses, or expand existing businesses. The consequences of a State losing its credit worthiness can be detrimental to a national economy and limit the practical ability of a regime to wage war and/or commit atrocities. With the spread of technology and wider access to information, it is be expected that the public in these countries are increasingly aware of these correlations. As such, an adjudication by a Development Bank or other organization that determines whether FDI flows continue, should carry significant punishments not just for the State, but for the officials within the regimes of these States who rely on international financing to maintain their grip on power.

Some academics have argued that this exertion of soft power by regional and international organizations detracts from the salience of hard law adjudications, with these financing institutions having a more significant influence on the day-to-day operations of State behavior than the official tribunals conducted by the International Court of Justice or the ICC.14 Another significant criticism of the soft power created by these such organizations is that they operate in an opaque and inconsistent manner, harming the ability of the public or the international community to review the reasoning behind their determinations.15

This is supported by the fact that leaders of authoritarian governments in developing nations—that conduct elections—depend on the support of the public directly and that support depends, at least in part, on the regime’s ability to promote the economy.16 In States that do not conduct free and fair election, leaders depend even more heavily on the support of the military to remain in power. This support is also dependent on FDI and foreign cash reserves, indirectly, by ensuring the economy has a large enough tax base to continue funding the military’s operations, and directly, when the military leadership shares in the embezzlement and gatekeeping that comes with nearly all FDI in the developing world. Abusive leaders operating in this environment would be justified being more afraid of losing their source of funding, which may lead to their being overthrown, than the low risk of being extradited to the Hague. Thus, indiscriminate access to capital through Development Banks can legitimize atrocity-committing governments and reduce their relative threat assessment of an ICC prosecution. This is magnified when other regional organizations, such as the AU, use their collective power to provide mutual protection to leaders whose interests are aligned—for instance by casting ICC extradition as a colonialist, interventionist phenomenon that should be resisted.17

This conduct by regional organizations discourages the rule of law by incentivizing the political and military leadership to appoint friendly judges that are unlikely to bring them to justice for crimes against their population or neighboring States. It also provides corrupt regimes more capital to bribe these national courts. Thus, Development Banks’ indiscriminate funding provides more opportunities for high-stakes embezzlement, ratcheting up the financial incentive to retain power through undemocratic means, which then can lead to political violence and other human rights violations, which the corrupted judiciary is unlikely to punish. In doing so, Regional organizations here seem to drastically harm the implementation of complementarity.

However, there is hope. International organizations and Development Banks’ ability to withhold funding and stop a nation’s economic activities is a powerful tool that can be used to punish bad behavior, such as when a State fails to prosecute atrocities domestically or extradite heads of state indicted by the ICC. Where a regime is unwilling or unable to prosecute a government official for a serious crime, whether it is corruption or an Article 5 Crime, organizations could handle the matter through their internal adjudicative processes and conclude to withhold funding. As a result, criminally culpable officials would face increased scrutiny domestically, and States may be persuaded to prosecute these officials. Unfortunately, it seems likely that other bilateral and multilateral considerations, such as cooperation on national security matters and the promotion of global economic activity, led funding States in OECD countries to shy away from divesting in Development Banks and other organizations that fail to enforce strict consequences on recipients whose officials commit atrocities. These OECD countries’ failure to consistently demand compliance with basic human rights as a condition to accessing the global financial system has divested their power, and subsequently the regional organizations’ power, to compel violators into action. As a result, these regional organizations—namely, Development Banks that are effectively subsidiaries of the World Bank, IMF, and their sister organizations—which should have the ability to help implement complementarity, have instead contributed to the perpetuation of injustice. This failure to the align the interests of international organizations, who are all generally funded from the same source, is perhaps the starkest expression of inefficiency in the fragmented international legal system.

In fairness to such organizations, it is hard to predict what the world would look like in their absence. It is foreseeable that in the absence of institutionalized financial support, greater chaos and political upheaval would occur that involves more acts of violence against civilian populations and other atrocities, and lower overall social welfare in the aggregate. The institutionalization of corruption through these entities may even be a stabilizing force in some regions, such as Africa, where there are easily accessible natural resources which evildoers can exploit to fund conflict. Similarly, these financial institutions likely have been a factor in preventing conventional, prolonged State-on-State aggression among developing countries in the twenty-first century, as this activity is harder to conceal and arguably poses a larger threat to the international system, that would demand a response. Thanks in part to the stability provided by these Development Banks, the international community, especially funding nations, have a stronger economic interest in ensuring peace. Open warfare threatens markets and risks the total loss of capital that has been invested in a territory—whereas human rights violations injure people and societies dramatically, capital is at far more risk of total loss when there are attacks by conventional militaries against conventional militaries. Machiavellianly, the risk of nationalization also decreases when there is a stable, corrupt government.

Given the post-WWII impetus of the international community to stabilize currencies and markets18 as a means to promote peace and prevent future wars,19 the simplest answer is likely the correct one. Human rights violations caused indirectly by Development Banks and other organizations’ indiscriminate allocation of FDI has been an unfortunate, but unintended, consequence of obtaining external stability. However, mindful of this history, regional organizations and the OECD that funds them, should do more to promote internal security by committing to adjudicating the human rights and rule of law bona fides of recipients when making funding determinations. This should be done with a focus on consistency, integrity, and transparency in their processes to ensure that actions are in the interest of justice. Doing so would ensure regional organizations play a positive role in implementing complementarity.

If such organizations were to adopt stronger sanctioning tools, for instance, similar to those imposed by the United States’ Office of Foreign Assets Control (OFAC) that target specific individuals, they could meaningfully punish wrongdoers and discourage individual criminal conduct. The OFAC program strips designated persons from being able to engage in legitimate commerce by threatening criminal charges against anyone who does business with them, freezing assets, and locking them out of the global banking system.20 Practically, these designations are serious punishments that carry meaningful impacts on targeted individuals as these sanctions prevent them from engaging in a broad range of day-to-day activities necessary to survive in the modern era. Cut off from conventional banking, designated individuals struggle to access their savings and as a result struggle to run their businesses and pay for the daily upkeep of their families.

For government and military officials operating in corrupt developing countries— i.e., the folks ordering human rights violations in the places where they are most likely to occur—this also means scarcer resources to pay the bribes and other facilitation payments necessary to retain political support, influence national courts when they are in local disputes, and fund personal security forces. If regional organizations had the ability to similarly disarm officials and military leaders, or entire State governments, by freezing assets or barring them from engaging in transactions, these individuals may lose their power to carry out atrocities—or escape culpability, by adversely influencing national courts. As a result, the domestic prosecution of Article 5 Crimes might become more likely. Thus, achieving positive complementarity.

For this to be effective, it would need to be done consistently and with integrity, rather than on an ad hoc basis when it is politically convenient. In theory, regional bodies are in a good position to carry this out as they allow the international community to pool resources and centralize their intentions. Additionally, most developing countries’ largest trading partners are their border States, who typically are also members of the same regional body. Thus, a coordinated regional effort to isolate an individual could reasonably be expected to go beyond financial activity and include freezing their cross-border commerce activities. However, if a State or individual could get around an organization’s sanctions, for instance if the relevant members of the international and regional community are not able and willing to comply with the mandate to isolate the bad actor, then that actor’s bad conduct may not be sufficiently discouraged. Their conduct may in fact get worse out of desperation.

Similarly troubling, if the result of such sanctions is limited to provoking the national governments to prosecute a violator for corruption, when they are also accused of Article 5 Crimes, the result would fall short of proportional justice. This seems to be what is occurring in Sudan. Following years of crippling OFAC sanctions, President Omar al-Bashir eventually lost the ability to control the military and was deposed. He is accused of genocide and crimes against humanity by the international community and by constituents of Sudan’s transitional government—which includes representatives from the Darfur region he is accused of oppressing. Yet, he has only stood trial domestically for corruption and money laundering, for which he was convicted and sentenced to two years imprisonment.21 To date, he has not been extradited on the open ICC warrant.22

Escaping adjudication of criminal liability for the full scope of evil conduct, i.e., if the punishment ends at sanctions and prosecution for only corruption and similar financial crimes, such an outcome does not seem to be in the interest of justice. Nonetheless, in some instances, this may be the greatest extent of possible justice given practical limitations. For instance, the ICC’s inability to compel extradition absent the willingness of the State government in control of the territory where the accused is living, means justice through a trial at the ICC cannot occur. Similarly, a regional organization forcing a national government to prosecute23 a former head of state or other officials domestically, by threatening crippling sanctions on the entire State or military intervention if the government does not comply, seems overly interventionalist and harmful to innocent civilians, some of whom would then be twice victimized—first by the human rights violator(s) and then by worsening economic conditions caused by the intervention. This also likely would not be in the interest of justice.

Where a national government is unwilling to comply with extradition, it seems unlikely that mild financial consequences or diminution of status through shaming by a regional body would compel complementarity. Regional organizations could target officials in the new national government with harsh sanctions if they failed to comply, but this may lead to political instability during an already transitional period. Thus, unless the new government posed a significant threat to regional peace and security, or was itself on the verge of committing grave human rights violations,24 this would also likely not be in the interest of justice. Therefore, it seems regional organizations’ ability to implement complementarity by force, even by economic force, would be unjust and impractical in many contexts. It would also likely be at odds with international law, which generally prohibits interventions into domestic sovereign affairs25 and certainly prohibits the use of armed force outside of self-defense or authorization by the United Nations Security Council.26

III. Other Comments on the AU

Regional bodies in the developing world, including the AU, have generally failed to help implement complementarity in recent years. As previously discussed, these regional organizations’ power comes primarily from the funding provided by OECD States, which are unwilling to condition funding on the adjunction of human rights abuses. Pragmatically, it would not be self-serving for the leaders of the AU to go against this status quo, as doing so would bind them to additional obligations and prevent them from using the organization to protect their personal interests. Thus, it is unlikely the AU or similar regional bodies would meaningfully act to implement complementarity unless Member States’ national leaders were compelled to do so by their voters or the international community.

These regional organizations primarily act when doing so suits the collective interests of the leaders of their member States. And in many regions of the world, and in Africa particularly, there exists an agency problem—the interests of leaders are not aligned with the interests of civilian populations when it comes to accountability for human rights violations. Absent free and fair domestic elections, a civilian population’s interests will not be reflected in a regional bodies’ decision to assist in holding a leaders criminally culpable for Article 5 Crimes. Many members of the AU do not hold free and fair elections. Thus, the AU will continue to protect the interests of leaders rather than the interests of Member States’ populations. Only when the AU’s legitimacy is existentially threatened, for instance by failing to denounce a genocide, would the organization be expected to act in a way that goes against leaders’ interest in preserving their ability to violate human rights without interference.

With respect to implementing complimentary, the AU’s biggest contribution has been its use of collective power to shield past and future wrongdoers from criminal culpability by framing ICC extradition as a neocolonial enterprise, when in fact its members freely consented to joining. By resisting efforts to extradite heads of state, and failing to denounce grievous human rights violations, the AU legitimizes conduct that could be interpreted as Article 5 Crimes. This goes against the complementarity principle as the AU’s goal is to shield heads of states from justice altogether, not promote national court prosecutions for Article 5 Crimes.

The creation of the African Court for People and Human Rights by the AU appears to be a doubling down of this strategy.27 It is unclear how an international criminal prosecution28 under this tribunal would be perceived by the ICC, in terms of double jeopardy, or ne bis in idem.29 Would an African head of state indicted by the ICC have his case dropped if charges were bought under this tribunal? According to the Rome Statute:

[A person can be tried if the trial in another court was conducted] for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the [ICC] Court; or […] were not conducted independently or impartially […] in circumstances […] inconsistent with an intent to bring the person concerned to justice.30

Given the AU’s lack of integrity in its resistance to extraditing Omar al-Bashir, and through its persistent threats to withdraw from the Rome Statute,31 it seems unlikely that this AU tribunal would impartially bring an African head of state to justice for a violation of an Article 5 Crime. If such a proceeding was analyzed by the ICC, it likely would be deemed as a trial conducted for the purpose of shielding the person concerned from criminal responsibility, inconsistent with an intent to bring them to justice. Thus, it seems the AU is using this tribunal as a collective effort to implement negative complementarity.32 It is a smart tactic as this sets up the OTP for a political fight, where the ICC will have to defend its position by attacking the ability of this regional organization to conduct an impartial trial, which will likely come across as colonial and condescending, to the benefit of the AU’s primary argument for withdrawal. Nonetheless, on its face, the establishment of this court looks like an attempt to deny victims justice and help current and former heads of state escape culpability through sham complimentarily, while laying the groundwork for a ne bis in idem defense should the ICC challenge it. This is not in the interest of justice.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Linda E. Carter, The Principle of Complementarity and the International Criminal Court: The Role of Ne Bis in Idem, 8 Santa Clara J. Int’l L. 167 (2010), available online. ↩

2. 2.

   Id. ↩

3. 3.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], available online. ↩

4. 4.

   Id. at Preamble. ↩

5. 5.

   Id. Art. 17(1)(a). ↩

6. 6.

   See id. Art. 5

   (defining ICC jurisdiction over the crime of genocide, crimes against humanity, war crimes, and the crime of aggression). ↩

7. 7.

   Id. Art. 5

   (requiring the accused to be present at trial, due to this formality, and the failure of the ICC to either find an accused or compel their extradition, only slightly more than half of the people indicted by the ICC have been tried at the Hague). ↩

8. 8.

   About the Court, ICC, available online (last visited Aug. 28, 2023).

   (Charges were dropped against five, who died prior to trial; presumably, these and other twelve who remain at large, escaped justice). ↩

9. 9.

   Justice can take on many meanings that go beyond criminal culpability of a perpetrator for past crimes, such as taking measures that seek to prevent future atrocities. Examples of this include truth and reconciliation, the promotion of human rights as a top national priority, and building capacity in national legal systems to ensure future perpetrators are held accountable. These are all instances where regional organizations might play a role. ↩

10. 10.

    Ana Carolina Garriga, Human Rights Regimes, Reputation, and Foreign Direct Investment, 60 Int’l Stud. Q. 160 (Mar. 2016), available online, doi. ↩

11. 11.

    Beth A. Simmons & Allison Danner, Credible Commitments and the International Criminal Court, Int’l Org. 225 (Apr. 2010), available online, doi

    (finding that States most likely to commit atrocities are incentivized to join human rights treaties in order to obtain reputational benefits, but in practice these commitments have little practical importance). ↩

12. 12.

    James R. Hollyer & Bryan Peter Rosendorff, Why Do Authoritarian Regimes Sign the Convention Against Torture? Signaling, Domestic Politics and Non-Compliance, SSRN (Jun. 1, 2011), available online, doi. ↩

13. 13.

    Antonio Franceschet, The Rule of Law, Inequality, and the International Criminal Court, 29 Alternatives 23 (Feb. 2004), paywall, doi. ↩

14. 14.

    See generally, Cathrin Zengerling, Regional International Judicial and Quasi-Judicial Bodies, in Greening International Jurisprudence: Environmental NGOs before International Courts, Tribunals, and Compliance Committees 93 (Aug. 22, 2013), available online. ↩

15. 15.

    Dinah Shelton ed., Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (Oct. 9, 2003), paywall, doi. ↩

16. 16.

    Economies of developing countries often rely significantly on FDI-intensive infrastructure and resource extraction projects, as well as foreign cash reserves and the international banking system to conduct trade. ↩

17. 17.

    This allows leaders of States to obtain the benefits of membership in the Rome Statute, e.g., legitimization internationally, an air of respect for human rights, and the ability to weaponize ICC prosecutions against their foes, while avoiding the consequences themselves. Thus, they are better off remaining in the treaty than withdrawing. ↩

18. 18.

    Cooperation and Restoration (1944–71), IMF, available online (last visited Aug. 28, 2023). ↩

19. 19.

    United Nations Charter, Preamble, available online. ↩

20. 20.

    See The Office of Foreign Assets Control—Sanctions Information, U.S. Dept. of Treas., available online (last visited Aug. 28, 2023).

    (“The Office of Foreign Assets Control (‘OFAC’) of the U.S. Department of the Treasury administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States.”). ↩

21. 21.

    Abdi Latif Dahir, Sudan’s Ousted Leader is Sentenced to Two Years for Corruption, N.Y. Times, Dec. 13, 2019, available online.

    (Omar al-Bashir was convicted in a domestic Sudanese court for corruption charges in late 2019 and is currently serving this two-year sentence while an ICC warrant has been outstanding for his arrest for twelve years). ↩

22. 22.

    See Al Bashir Case, ICC, available online (last visited Aug. 28, 2023)

    (“[The outstanding ICC warrant consists of] five counts of crimes against humanity: murder, extermination, forcible transfer, torture, and rape; two counts of war crimes: intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities, and pillaging; three counts of genocide: by killing, by causing serious bodily or mental harm, and by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction, allegedly committed at least between 2003 and 2008 in Darfur, Sudan.”). ↩

23. 23.

    The same analysis applies to regional organizations attempting to force a national government to extradite indicted individuals to the ICC. ↩

24. 24.

    See, e.g., Ben Kioko, The Right of Intervention Under the African Union’s Constitutive Act, Int’l Rev. Red Cross 85, 807 (Dec. 2003), available online

    (concluding that Article 4(h) of the Constitutive Act of the African Union gives the AU the right to intervene militarily to prevent Article 5 Crimes in an AU Member State, but that practically, such an intervention would be difficult for the AU to decide on and to carry out). ↩

25. 25.

    United Nations Charter, supra note 19, at Art. 2(7). ↩

26. 26.

    Id. Art. 51. ↩

27. 27.

    Max du Plessis, A Case of Negative Regional Complementarity? Giving the African Court of Justice and Human Rights Jurisdiction over International Crimes, EJIL Talk (Aug. 27, 2012), available online. ↩

28. 28.

    See generally, Pascifique Manirakiza, Complementarity between the International Criminal Law Section and Human Rights Mechanisms in Africa, in The African Court of Justice and Human and Peoples’ Rights in Context: Developments and Challenges, 989 (Charles Chernor Jalloh, Kamari Maxine Clarke & Vincent Obisienunwo Orlu Nmehielle eds., May 2, 2019), available online, doi

    (discussing how this court does not presently have the authority to prosecute criminal liability, however, this is something AU members are pushing for). ↩

29. 29.

    Rome Statute, supra note 3, at Art. 20. ↩

30. 30.

    Id. ↩

31. 31.

    du Plessis, supra note 27. ↩

32. 32.

    Vincent Obisienunwo Orlu Nmehielle, “Saddling” the New African Regional Human Rights Court with International Criminal Jurisdiction: Innovative, Obstructive, Expedient?, 7 AJLS 7 (Aug. 27, 2014), available online, doi. ↩

The two “permanent criminal law enforcement regimes available” when a state has a tie to a recognized core international crime are universal jurisdiction by States and the ICC.10 For a state to try a crime under universal jurisdiction, there are essentially three pieces required

1. Specified grounds for exercise of jurisdiction,

2. A well-defined offense, and

3. Means for the nation to enforce the exercise of jurisdiction.11

The Rome Statute and the principle of complementarity gives express preference for domestically led prosecutions.12 Accordingly, there may be a preference to defer to a State to exercise universal jurisdiction, where possible, in line with goals set out by the Rome Statute. While cases may be deferred to states, the recent case for Rohingya demonstrates ICC investigations and State exercise of universal jurisdiction are not mutually exclusive.13 Additionally, while the principles set out in the Rome Statute promote working together, Article 90(3) of the Rome Statute currently outlines the hierarchy for extradition in the case that a state receives requests to extradite an individual from both the ICC and another state, that is a member or not, simultaneously.14 Under this Article, the ICC is given preference over competing requests. It is clear that to promote collaboration and make the ICC a more effective partner with states exercising universal jurisdiction, there are several changes that the ICC could make. These changes could include a multi-faceted approach including training and amending Article 90(3).

II. Exemplary State Exercise of Universal Jurisdiction

Scholars have expressed varying opinions on the history of states exercising universal jurisdiction. While some have described it as a “rise and fall” pattern with it being on the decline, others have disagreed asserting that states exercising universal jurisdiction has been quietly on the rise.15 Specifically, a recent study gathered data on universal jurisdiction and made several findings. First, “the sum total of cases initiated and the defendants tried on the basis of universal jurisdiction has continued to rise.”16 Additionally, each year in the last decade has had “at least one universal jurisdiction-based prosecution brought to trial, and […] there have been more such trials than in the prior two decades combined.”17 Moreover, the exercise of universal jurisdiction has grown to cover more geographic areas.18 As other researchers have asserted this motivation to increase universal jurisdiction-based cases has grown in part due to the shortcomings of the ICC, as a result of budget constraints and limited jurisdiction, the need for cooperative ICC efforts for universal jurisdiction-based cases is clear.

According to the study completed, prior to 1988 there were 286 universal jurisdiction cases tried, from 1988 to 1977 there were 342 cases, from 1998 to 2007 there were 503 cases, and from 2008 to 2017 there were 815 cases tried.19 Individual states that have tried universal jurisdiction cases have experienced different patterns and surges of cases depending on events that have impacted States in varying ways; however, looking to individual states with histories of completing trials can be informative. Specifically analyzing political conditions and enactments of laws that empowered states to try universal jurisdiction-based cases is significant.

A first state that can be analyzed is Sweden, who has tried nine cases between 2008 and 2017.20 Sweden and other Nordic states have taken on a greater role trying cases particularly due to Middle Eastern and Syrian related crimes.21 In July 2014, Sweden’s Parliament issued the Act on Criminal Responsibility for Genocide, Crimes against Humanity, and War Crimes.22 This Act models the Rome Statute. Furthermore, Sweden has a War Crime Unit which is “responsible for all investigations into genocides, crimes against humanity and war crimes.”23 This infrastructure has allowed Sweden to develop a system in which universal jurisdiction cases can be successfully brought and tried. As a positive consequence, NGOs have actively promoted Sweden as a potential option for trying crimes committed in Syria.24 For example, the Syria Justice and Accountability Center offers a “Guide to National Prosecutions in Sweden for Crimes Committed in Syria.”25 Accordingly, Sweden can be instructive in understanding how laws, infrastructure, and a focus tended towards certain crimes can develop a successful system for trying universal jurisdiction-based crimes.

Another state that can be instructive is Germany, who has tried five universal jurisdiction cases between 2008 and 2017.26 Similar to Sweden, Germany has laws aimed to ICC eligible crimes modeled after the Rome Statute. Specifically, their Code of Crimes against International Law (CCAIL) that was enacted in 2002 and revised in 2016.27 Germany has recently tried cases trying crimes committed in a variety of geographic ranges. For example, they tried cases for both crimes against humanity and war crimes committed in Syria.28 They even made history for the first criminal trial for governmental torture committed in Syria.29 Additionally, they have tried cases outside Syria such as the case against militia leaders in Congo.30 Notably, the German delegation at a United Nations General Assembly made their commitment to trying universal jurisdiction-based crimes known stating:

The message is clear: those who commit atrocities cannot feel safe. They will eventually be held accountable. There is no safe haven for perpetrators of international crimes against criminal prosecution in Germany.31

Furthermore, the German government has highlighted their hope that the universal jurisdiction-based trials will have “symbolic power” and be “pioneering work” for other states.32 This demonstrates their willingness to be leaders and teach other states how to successfully try universal jurisdiction-based crimes.

In addition to Germany and Sweden, Finland can serve as another informative example of a state that has success trying universal jurisdiction cases. From 2008 to 2017, Finland has had five universal jurisdiction trials.33 Finland has adopted the Finish Criminal Code and the Decree on the Application of Chapter 1, Section 7 of the Criminal Code (Decree) which covers international crimes that fall under their universal jurisdiction.34 The crimes include genocide, crimes against humanity, war crimes, and torture, in line with crimes outlined by the Rome Statute. Moreover, the Decree covers modes of liability and temporal application.35 Lastly, they have outlined universal jurisdiction requirements.36 In addition to the Finish Criminal Code, the Criminal Investigation Act outlines investigations and appoints the Head Investigator who works with the Finnish Police of the National Bureau of Investigation (NBI). Furthermore, it outlines the Homicide/Serious Crimes Unit of the NBI oversees the investigations.37 The legal framework and corresponding infrastructure has enabled Finland to successfully try universal jurisdiction cases such as those against Iraqi nationals, Hadi Habeeb Hilal and Jebbar Salman Ammar for war crimes.38 Despite its success, Finland has previously highlighted the need for a more well-defined notion for the principle of universal jurisdiction. In its statement to the U.N. in 2013, Finland noted:

The principle of universal jurisdiction is not a novelty in criminal law. It is generally agreed that international customary law allows the use of universal jurisdiction with regard to certain international crimes but views are divergent as to the exact scope of the principle. Underlying notions of universal jurisdiction may also be contained in conventions which oblige their states parties to either extradite or prosecute suspects of acts prohibited by such conventions, although the two concepts are separate and distinct from each other.39

This observation can help to be a guiding point for solution proposals for how the ICC can be a more effective partner.

France is another state that has had a recent history of successful universal jurisdiction-based trials. Of note, from 2008 to 2017 France has had four universal jurisdiction trials.40 In 2010, the French Code of Criminal Procedure was amended to model the Rome Statute.41 It gave French courts universal jurisdiction over genocide, crimes against humanity, and war crimes. Notably, in addition to the commonly recognized crimes under the Rome Statute, the Code of Criminal Procedure criminalizes enforced disappearance and torture under war crimes and crimes against humanity. While courts were given expanded rights under this Code, France defined the standard for courts to exercise universal jurisdiction, where the standard changes subject to the type of crime committed. Specifically, two frameworks were created:

[O]ne that applies to cases involving torture, enforced disappearance, and crimes committed in the former Yugoslavia and Rwanda, and another for all other grave international crimes cases.42

Furthermore, French law provides the framework for criminal proceedings, allowing them to be brought by either prosecutors or private parties.43 France’s framework has resulted in the capability of trying a range of crimes such and leading structural investigations such as those in Syria.44

While other states discussed above have been informative on demonstrating how implementing laws for universal jurisdiction can be a game changer for success, Spain’s history shows the impact of narrowing laws. Specifically, how amending laws to reduce the universal jurisdiction capacity can be detrimental for trials. While Spain had played a critical role in early implementation of universal jurisdiction cases, amendments in 2009 to their legislation limited Spanish courts’ ability to exercise jurisdiction.45 As a result, there was a dramatic drop in cases tried. This outcome furthers the idea that nations need solid and robust legislation to permit successful universal jurisdiction-based case trials.

III. Proposal for Strengthening ICC Partnership for Universal Jurisdiction

A. Legislation and Infrastructure Commonalities in Successful States

The state examples above are instructive in showing common themes for nations that have been able to successfully exercise universal jurisdiction. Notably, Sweden, Germany, Finland, and France all have adopted legislation that models the Rome Statute. While every state has slight variances in the specifics of the framework, they all enable their respective judiciaries to exercise universal jurisdiction with clear and defined boundaries, outline who can bring cases, and explain other procedures such as appeals and immunities. Additionally, these nations have infrastructure that is set up to handle the investigations of these crimes, such as Sweden’s War Crime unit.

B. Observations from States that Repeatedly Try Cases

In explaining the driving factors for the “quiet” growth of universal jurisdiction, researchers pointed out the impact of institutional learning.46 Institutional learning is a theory that an institution has the “capability” to “learn about, adapt and change” operational strategies and institutional frameworks.47 This can be accomplished through learning by doing, using, or interacting.48 A notable trend based on the data of states who try universal jurisdiction cases is that:

[A] majority of states that have held one or more universal jurisdiction trials in the last decade did so after having held at least one such trial in the previous decade. And, among those states that had no trials held before 2008, all but one conducted more than one trial in the years between 2008 and 2017.49

The researchers asserted this pattern correlates to the argument that states that have exercised universal jurisdiction are more likely to exercise it again in the future as a result of the gained “institutional knowledge.”50 Accordingly, it is arguable that legislation, infrastructure, and institutional knowledge form the basis for successfully trying universal jurisdiction-based cases. It can be asserted the ICC could become a more effective partner through orchestrating training other nations that do not yet have the infrastructure or institutional knowledge.

C. Using the Hague

Article 112 of the Rome Statute outlines the requirement for the Assembly of States Parties to meet “as often as necessary, but at least once a year.”51 Every State Party has a single representative in the Assembly. The Assembly provides oversight to the Presidency, the Prosecutor and the Registrar, along with adopting the Rules of Procedure and Evidence and Elements of Crime.52 While Assembly meetings may be held in New York at the U.N. headquarters, they are often held at the Hague, which additionally serves as the ICC headquarters.53 Accordingly, the Assembly of States Parties at the Hague, may pose a unique opportunity for the ICC to make itself a more effective partner to states exercising universal jurisdiction. This could be accomplished through a multi-part approach of teaching, discussion to narrow core principles of universal jurisdiction, and amend Article 90(3) as needed at a Hague Assembly of States Parties.

First, the Hague Assembly of States Parties could be utilized as a training ground for states that need help successfully trying or have not yet tried universal jurisdiction cases. Member states such as those analyzed above could discuss implementation of legal framework to support universal jurisdiction. While each member state would need to develop and implement their own laws for their specific needs, this would at least help guide member states for what may or may not work. Additionally, successful member states could teach what infrastructure is needed to investigate cases, such as crime units. Finally, member states that have tried universal jurisdiction could help walk other states through successful and unsuccessful trials step-by-step. This teaching process could arguably serve as a method of institutional learning, which has been demonstrated to equate to continued success for trying universal jurisdiction-based cases.

Next, during the Assembly, the States parties could work together to discuss and recognize more defined principles of universal jurisdiction. Ideally, this would help address the issues with the overall rule of law capacity, as this was a problem highlighted by Finland above. Though states do not need to adopt the exact same legal framework and understanding of universal jurisdiction principles, having more similar or common understanding would help guide what crimes fall under universal jurisdiction. Further, it could help guide extradition or prosecution of suspected criminal actors.

Lastly, in addition to orchestrating training of member states, the ICC could use these discussions to inform potential amendments to Rome Statute Article 90(3). Member states that have tried universal jurisdiction-based cases are critical in helping to identify what evidence and assistance may be most beneficial for the ICC to provide where available. Ideally, through the process of training other member states, states that have tried crimes could point to instances in which evidence or other assistance may have been dispositive, which could help guide the amendments needed.

IV. Conclusion

The ICC has the unique opportunity to use the expertise of states that have tried universal jurisdiction-based cases to train other states on trying cases. States that are trying universal jurisdiction-based cases can be instrumental in the ICC being a better partner for states trying universal jurisdiction-based cases. Analyzing states that have been previously successful in repeatedly trying cases highlights the need for laws and infrastructure in order to tackle universal jurisdiction-based cases. In addition, researchers have demonstrated that institutional knowledge is a key component for nations trying and continuing to try universal jurisdiction-based cases. The ICC at the States Parties Assembly at the Hague has the opportunity to coordinate and manage training of states that are not yet trying cases or have not successfully tried a case. The ICC could organize state representatives from nations such as Sweden, Germany, Finland, and France to train other nations in their implementation of laws that model the Rome Statute and their respective infrastructures such as appointing head investigators or developing crime units. Additionally, the ICC can use the feedback and training during these meetings to develop ideas on what amendments may be helpful for Rome Statute Article 90(3).

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Article 5, available online. ↩

2. 2.

   Anthony D’Amato, The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1110, 1113 (Oct. 1982), paywall, doi. ↩

3. 3.

   Anthony J. Colangelo, Universal Jurisdiction as an International “False Conflict” of Laws, 30 Mich. J. Int’l L. 881 (2009), available online. ↩

4. 4.

   Restatement (Third) of The Foreign Relations Law of the United States § 402(1)(a) (1987), [hereinafter U.S. Foreign Relations Law Restatement], available online. ↩

5. 5.

   Id. § 402(3). ↩

6. 6.

   Colangelo, supra note 3, at 887. ↩

7. 7.

   Xavier Philippe, The Principles of Universal Jurisdiction and Complementarity: How do the Two Principles Intermesh?, 88 Int’l Rev. Red Cross 377 (Jun. 2006), available online. ↩

8. 8.

   U.S. Foreign Relations Law Restatement, supra note 4, at § 404; Leila Nadya Sadat, Redefining Universal Jurisdiction, 35 New Eng. L. Rev. 241, 246 (2001), available online. ↩

9. 9.

   International Criminal Court, Elements of Crimes, ICC-ASP/1/3, Adopted and Entry into Force 9 September 2002, updated at Kampala, 31 May-11 June 2010 (Jun. 11, 2011), available online. ↩

10. 10.

    See, e.g., Máximo Langer, The Archipelago and the Wheel: The Universal Jurisdiction and the International Criminal Court Regimes, in The First Global Prosecutor: Promise and Constraints 204 (Martha Minow, Cora True-Frost & Alex Whiting eds., 2015), available online. ↩

11. 11.

    Philippe, supra note 7, at 379. ↩

12. 12.

    Rome Statute, supra note 1, at Art. 1. ↩

13. 13.

    Kanishka Kewlani, Three Avenues to Justice for the Rohingya, Bulletin (Feb. 17, 2022), available online.

    (In this case, the Rohingya people allegedly suffered persecution at the hands of the Myanmar government. While Myanmar is not a party to the ICC, the ICC authorized the ICC Prosecutor in 2019 to investigate due to the crimes taking place on the boarder of Myanmar-Bangladesh and Bangladesh is a state party. Additionally, in 2019 the Burmese Rohingya Organization UK filed a complaint with the Argentinian national criminal court against Myanmar pursuant to the principle of universal jurisdiction). ↩

14. 14.

    Rome Statute, supra note 1, at Art. 90. ↩

15. 15.

    Máximo Langer, Universal Jurisdiction is Not Disappearing: The Shift from “Global Enforcer” to “No Safe Haven” Universal Jurisdiction, 13 J. Int’l Crim. Just., 245 (May 2015), paywall, earlier version, doi. ↩

16. 16.

    Máximo Langer & Mackenzie Eason, The Quiet Expansion of Universal Jurisdiction, 30 EJIL No. 3, 779, 781 (Aug. 2019), available online, doi. ↩

17. 17.

    Id. ↩

18. 18.

    Id. ↩

19. 19.

    Id. at 785. ↩

20. 20.

    Id. at 794. ↩

21. 21.

    Id. at 787. ↩

22. 22.

    Act on Criminal Responsibility for Genocide, Crimes, Against Humanity and War Crimes, SFS 2014:406 (Jun. 11, 2014), available online. ↩

23. 23.

    War Crime—Swedish Police Efforts, Polisen, available online (last visited Aug. 29, 2023). ↩

24. 24.

    Syria Justice and Accountability Centre, A Guide to National Prosecutions in Sweden for Crimes Committed in Syria (Sep. 2, 2019), available online. ↩

25. 25.

    Id. at 1. ↩

26. 26.

    Langer, supra note 15, at 794. ↩

27. 27.

    Code of Crimes Against International Law (Germany), Fed. L. Gazette vol. 1 at 2254 (Jun. 26, 2002, as last amended Dec. 22, 2016), available online. ↩

28. 28.

    Human Rights Watch, Germany: Conviction for State Torture in Syria (Jan. 13, 2022), available online. ↩

29. 29.

    Verdict Based on Principle of Universal Jurisdiction, Deutschland.de (Jan. 14, 2022), available online. ↩

30. 30.

    Cristian González Cabrera & Patrick Kroker, A Congo War Crimes Decision: What It Means for Universal Jurisdiction Litigation in Germany and Beyond, Just Security (Jan. 11, 2019), available online. ↩

31. 31.

    Statement, Federal Republic of Germany, The Scope and Application of the Principle of Universal Jurisdiction U.N. Sixth Committee (Oct. 12, 2022), available online. ↩

32. 32.

    Jenny Gesley, FALQs: The Exercise of Universal Jurisdiction in Germany, Lib. Cong. Blogs, § 4 (Jun. 30, 2022), available online. ↩

33. 33.

    Langer, supra note 16, at 794. ↩

34. 34.

    Criminal Code (Finland), 626/1996, International Offence Ch. 1, § 7, (as amended 2015), available online (trans.); Decree on the Scope of Application of the Criminal Code (Finland), International Offence Ch. 1, § 7 (Aug. 16, 1996), available online. ↩

35. 35.

    Open Society Justice Initiative & Trial International, Universal Jurisdiction Law and Practice in Finland (Feb. 2020), available online. ↩

36. 36.

    Id. at 12. ↩

37. 37.

    Id. ↩

38. 38.

    Second Iraqi Fighter Found Guilty of War Crimes in Finland, Radio Free Europe, Mar. 23, 2016, available online. ↩

39. 39.

    Statement, Sari Mäkelä, Permanent Mission of Finland, The Scope and Application of the Principle of Universal Jurisdiction, U.N. Sixth Committee (Oct. 17, 2013), available online. ↩

40. 40.

    Langer, supra note 16, at 794. ↩

41. 41.

    Code de Procédure Pénale, Arts. 689–2, 689–13 (in force Mar. 2, 1959) (fr.), available online. ↩

42. 42.

    Human Rights Watch, The Legal Framework for Universal Jurisdiction in France (2014), available online. ↩

43. 43.

    Id. at 4. ↩

44. 44.

    Langer, supra note 16, at 787. ↩

45. 45.

    Id. ↩

46. 46.

    Id. at 792. ↩

47. 47.

    Björn Johnson, Institutional Learning, in National Systems of Innovation: Toward a Theory of Innovation and Interactive Learning 20, 23 (Bengt-Åke Lundvall ed., 2010), paywall, doi. ↩

48. 48.

    Id. ↩

49. 49.

    Langer, supra note 16, at 793. ↩

50. 50.

    Id. ↩

51. 51.

    Rome Statute, supra note 1, at Art. 112. ↩

52. 52.

    Id.; see also Assembly of States Parties, ICC, available online (last visited Aug. 29, 2023). ↩

53. 53.

    Id. ↩

However, the ICC is now facing many challenges. Today, when we are looking at statistics of the ICC, we can’t help feeling a little bit disappointed that things did not go as well as we expected. It took International Criminal Tribunal for the Former Yugoslavia nearly twenty-five years and about $3 billion to try more than one hundred defendants.1 Trials in all of these tribunals have moved very slowly, taking years from arraignment to appeal. In some cases, delays in justice have turned into denials of justice.

Beside these slow trial procedures, there are many countries withdrawing the ICC in these years. On November 16, 2016, Russian President Vladimir Putin signed an order announcing his withdrawal from the ICC in The Hague, the Netherlands. According to RIA Novosti, Russian President Vladimir Putin has instructed the relevant ministries to inform the U.N. Secretary-General that Russia does not intend to become a member of the Rome Statute of the ICC.2 The U.S. initially signed the Rome Statute under the Clinton administration but later withdrew, under the leadership of George W. Bush. Sudan and Israel have also withdrawn their signatures in the past, while other nations—including China and India—have rejected membership outright.

In this case, the ICC need to work harder to achieve its goal of combating serious crimes and upholding justice and fairness. Cooperating with regional organizations can be a proper solution to this challenge we are facing today. However, the ICC has been working hard to accomplish its original goals, and despite pressure from all sides and often without sufficient understanding and support from the international community or even local people, the ICC has persevered in bringing the concept of fairness and justice to the world.

III. Regional Organizations in Solving Regional Conflicts

Peace and security are the eternal pursuit of human society, and there has been a long-standing dispute between globalism and regionalism on the issue of peace and security. After World War II, the political elites of the victorious countries established a collective security system centered on the U.N. Security Council, but with the changes in the international situation after the Cold War, the trend of regionalization of security emerged. In the post-Cold War period, especially in the last decade, regionalization of security is becoming an important feature of the new international security order, and the status and role of regions in the global security architecture is becoming increasingly prominent. Some scholars argue that regionalization, as the only intermediate channel between the state and globalization, can unify most social forces and serve as a buffer zone and medium between nation-states and the international community.3

Since February 2011, the Libyan conflict in North Africa has become the focus of international attention in recent years. The weak border defense between Libya and its neighbors, as well as the inextricable links between ideological and ethnic issues, have quickly turned the conflict into a regional event, and the situation in North Africa continues to be volatile. In terms of the consequences of conflict, the issue of human security in the African region is prominent, and in all conflicts, we see tragic scenes of displacement of innocent civilians, rampant disease, and massive population loss. In Congo, for example, the number of deaths directly or indirectly caused by conflict has exceeded the number of British deaths in World War I and World War II combined, while in the Darfur region of Sudan, nearly two million people have been displaced by civil conflict.4

However, despite being at the weakest link in the global security chain in the post-Cold War African region, the external support it can receive from the international community does not match its security needs. There are some reasons that caused this situation. First, in the face of the new security situation, the United Nations hopes that regional forces will share more and “undertake” the responsibility and obligation to maintain peace and security in the region. Second, the U.N. has shown a tendency to be selective in resolving regional conflicts.5 Third, major Western countries have adjusted their security policies toward the African region. The post-Cold War U.S. approach to regional security in Africa manifested itself in the need for Africa to assume its own responsibilities, and based on this purpose, the U.S. encouraged regional organizations to play a role in maintaining regional security.6

Under the influence of the above factors, external forces have been absent from security governance in the African region, which in turn has pushed African countries to seek to form mechanisms to maintain security at the regional level to bridge the gap between reality and needs. African countries have also begun to show more recognition of the involvement and role of their own regional organizations. In 2003, for example, the Sudanese government opposed the presence of international actors other than the African Union in Darfur, fearing that it would infringe on its sovereignty. It was only through the good offices of the international community that Sudan agreed to send a hybrid U.N.–AU peacekeeping force to Darfur. Similarly, in the 2002 conflict between the Sudanese government and Southern opposition forces, the parties to the conflict also saw the East African Intergovernmental Authority on Development as a more appropriate actor to play a central role.

At the same time, regional organizations have some natural advantages in resolving conflicts in the region. For example, African regional organizations are located in the region and know the region better; they are the first to feel the impact of regional conflicts and have more urgent political will to respond quickly to conflict events; they intervene in regional conflicts with a more moderate action posture, which is more acceptable to the parties to the conflict. The relatively poor governance capacity of most African governments makes it easy for an internal conflict to spread into a regional threat, and regional organizations try to remedy and resolve this dilemma to some extent. All of these reasons make regional organizations uniquely positioned to play a role in regional conflict resolution actions that other international actors cannot.7

If regional organizations can resolve regional conflicts by a more peaceful means, thereby reducing the likelihood of mass atrocities, then they can help the work of international criminal tribunals in their role of preventing mass crimes.

IV. Cooperation Between the ICC and Regional Organization

If the ICC can enter into cooperative relationships with regional organizations and sign cooperation agreements, a win-win situation can be achieved. Compared with regional organizations, international criminal tribunals have broader influence and appeal at the international level; and regional organizations also have local mediation capacity that international criminal tribunals cannot have. For example, regional organizations can effectively break the time limit of international criminal tribunals by solving problems at the local level. International criminal tribunals need to follow procedural justice, but procedural justice also sacrifices efficiency to a certain extent. Regional organizations, on the other hand, do not need to be subject to too many procedural restrictions because they are not court trials, and they can be more flexible in solving problems locally.

Take African Union Mission in Burundi as an example, prior to the withdrawal of the AU Mission in Burundi (AMIB) from the mission area in 2004, a stabilization posture had been effectively maintained over 95% of Burundi’s territory, facilitating access for humanitarian relief supplies, and providing protection for the return of specially designated leaders. It can be said that AMIB has succeeded to some extent in ensuring the “political and economic security” of Burundi. And the stabilization of the situation in Burundi paved the way for the UN’s intervention, and the U.N. peacekeeping force in Burundi replaced AMIB in June 2004 to carry out the peacekeeping mission.8 This case clearly demonstrate that African regional organizations are uniquely positioned and can play a positive role in maintaining regional peace and security. Their familiarity with the region and their ability to respond quickly make them an “advance guard” in maintaining regional peace and security, but limited by their lack of resources and capacity, they often also need the support and assistance of the U.N. and Western powers.

The most obvious difficulties for regional organizations in carrying out their actions are their lack of capacity and resources. The African Union (AU), Economic Community of West African States (ECOWAS), and other African regional organizations generally face a lack of resources problem, with the AU mission in Sudan, the ECOWAS operations in Liberia, and in Sierra Leone eventually being taken over by the United Nations. In the case of the AU, for example, about one-fifth to one-quarter of member states are unable to meet their financial obligations to the AU, forcing the AU to rely more on external assistance and raising questions about the sustainability and ownership of the AU operations.9 The dilemma regional organizations are facing is where the ICC can actively engage and make some difference. While not necessarily in a position to support the work of regional organizations with their own funds, the ICC can use their extensive influence in the international community to facilitate or even help them to find sponsor to the work of regional organizations.

Second, the deep-rooted issues in the actions of regional organizations are then the basis for the legitimacy of actions within the framework of the organization. Regional organizations are an effective option for maintaining regional peace and security and can play a positive role in using local approaches to solve local problems. However, regional organizations also face a double dilemma in terms of reality and international law when establishing regional collective security mechanisms based on the concept of regionalization of security to cope with the conflict-ridden security situation. It is regulated in Constitutive Act of The African Union that:

[T]he right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.

It is clear that this provision draws on the relevant provisions of the Rome Statute, thus demonstrating the influence of international criminal tribunals on the legitimacy of regional organizations. It is understandable that regional organizations, with limited human and financial resources, often do not have the same number of legal and international political talents as the ICC, and therefore need the help of the ICC in drafting constitutional charters, establishing working regulations and ensuring the legitimacy of their work. It is practical that the ICC could send some of their experts to regional organizations to give them some training courses both in how to work legally in local issues and how to draft internal regulations.

Publicity is also another important part in cooperation between the ICC and regional organization. If cooperation can be reached with the ICC, in a way it means that a regional organization is recognized at the international level. And the ICC has also been committed to extending the concept of human rights, fairness, and justice to all regions. At a regional level, the ICC is likely to be less well known and recognized than a regional organization that is widely recognized within a region. The ICC can consult with regional organizations on how to publicize, in what form, and with what content to achieve the best results, in order to develop the most effective and targeted means of publicizing in a region. With their knowledge and experience in local community, regional organization can be a wonderful partner as well as counselor in publicity.

In addition, an information linkage mechanism could be established between regional organizations and the ICC, with regular communication and exchange of information between the two sides. In today’s international community, information is a very valuable resource. If the ICC can reach information cooperation with regional organizations, they can obtain timely information about the local political situation, armed conflicts, and even information about the defendants at the prosecution stage. The ICC can also share their understanding of the international political situation with regional organizations in a timely manner and use it to bring about the linkage and cooperation of more regional organizations. In this way, regional organizations have become information suppliers to the ICC, and the ICC has become a hub of information for many regional organizations. The ICC could even use this information advantage to hold regular meetings of regional organizations, not necessarily offline, but also online, to further promote inter-regional communication and conflict resolution.

V. Conclusion

Facing challenges today, the ICC should actively seek cooperation with regional organizations. There are four aspects for the ICC to seek cooperation with regional organizations, which is international criminal help regional organizations to find sponsors, the ICC send some of their experts to regional organizations to give them some training courses, the ICC and regional organizations help each other to publicize, establish information linkage mechanism between regional organizations and the ICC. Both parties should actively sign a cooperation agreement to define these details in order to seek long-term stable cooperation.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Marieke Irma Wierda, The Local Impact of a Global Court: Assessing the Impact of the International Criminal Court in Situation Countries, 90 (Jan. 9, 2019) (Ph.D. dissertation, Leiden Law School), available online. ↩

2. 2.

   Russia Withdraws from International Criminal Court Treaty, BBC News, Nov. 16, 2016, available online. ↩

3. 3.

   Zaki Laidi, A World Without Meaning: The Crisis of Meaning, in International Politics 140 (Sep. 14, 1998), available online, doi. ↩

4. 4.

   See Selim Jahan, United Nations Development Programme, Human Development Report 2015: Work for Human Development (2015), available online. ↩

5. 5.

   See Martti Koskenniemi, The Place of Law in Collective Security, 17 Mich. J. Int’l L. 455 (1996), available online. ↩

6. 6.

   International Relations Subcommittee on Africa, African Crisis Response Initiative: A Security Building Block, H.R. No. 107–20, 107th Congress (Jul. 12, 2001), available online. ↩

7. 7.

   Jane Boulden, Introduction, in Dealing with Conflict in Africa: The United Nations and Regional Organizations 3 (Jane Boulden ed., 2015), paywall, doi. ↩

8. 8.

   Festus Agoagye, The African Mission in Burundi: Lessons Learned from the First AU Peacekeeping Operation, ISS 9, 14 (Aug. 26, 2004), available as download. ↩

9. 9.

   The African Peace and Security Architecture, AU, available online (last visited Aug. 29, 2023). ↩

Another avenue of cooperation would be a formal training program where States that are interested in bolstering their ability to investigate and prosecute crimes similar Article 5 Crimes, send their staff to the Hague for formal training, similar to an LL.M. or clerkship. Finally, the ICC could provide advisory observations, similar to amicus briefs, to national courts during criminal proceedings, essentially serving as expert witnesses and lending their skills in a persuasive authority. In the long run, this could help build new national case law, with judges adopting ICC originated arguments and analysis in their decisions. However, all of these suggestions for means of cooperation carry a financial cost, and the ICC has a limited budget. Thus, they may prove more aspirational than practical.

II. Source of ICC Authority to Assist in National Courts: A Risky, Complex Endeavor

Aside from doctrinal and political objections to universal jurisdiction being applied in national courts, there are also significant practical barriers. The ICC is authorized to help overcome these barriers through the provision of “Other forms of cooperation.”15

As stated in the Rome Statute:

The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.16

This provision grants the ICC the right to assist State Parties, i.e., signatories to the Treaty, in their investigation or trial of the four defined Article 5 Crimes, as well as other serious crimes defined under a States’ national law. The vagueness of the latter portion of this sentence appears to be a broad authorization as to which types of crimes it may aid with. It also appears to defer to the requesting State to determine what constitutes a serious crime. Presumably where a States’ national law extends to foreigners under a universal jurisdiction doctrine, this threshold would be met and the ICC would be authorized to assist. However, this also begs the question of whether the Court would agree to aid in other infractions not contained in the Rome Statute, such as drug trafficking, which some signatories likely view as being overly prosecuted or even discriminatory. For instance, assisting in the investigation and trial of narcotics traffickers in the United States by U.S. national prosecutors may be viewed detrimentally by ICC-funding States in Europe who are opposed to U.S. drug policy on abolitionist grounds, or State Parties in Latin America who feel their nationals are disproportionately targeted.

Also, would the Office of the Prosecutor (OTP) or another organ of the Court have the authority to determine whether a crime is serious or unserious and thus worthy of cooperation? Or would this determination truly be left to the requesting State as the Statute seems to assert? The OTP is just one of the five organs of the Court.17 Per Article 42(1), the Rome Statute asserts:

[The Prosecutor] shall act independently as a separate organ of the Court. [… and …] [It] shall be responsible for […] conducting investigations. […] The Prosecutor shall have full authority over the management and administration of the Office, including […] the resources thereof.18

When the Rome Statute refers to The Court throughout Article 93, it is unclear where the decision-making authority to cooperate or not cooperate rests, i.e., does the decision to share evidence or provide other assistance during a State’s national trial belong to the Presidency, the OTP, Chambers, or even the Registry? Given the political backlash cooperating may lead to, how this cooperative power is wielded is important.

If dissemination of evidence is considered a “non-judicial aspect of the administration and servicing of the Court”19 it would seem the responsibility to share evidence belongs to the Registry. Yet, according to Article 42, the OTP has full authority to manage and administer its resources and is intended to operate independently. Is evidence a resource of the OTP’s office? If so, the power should rest with it to independently determine its best use. The time and expense of the OTP’s staff seem even more squarely within this reading. Conversely, the Presidency given its “role in representing the Court to the outside world,” also seems to have a viable claim to speak for the Court on this issue.20 International cooperation would seem to fit into this representative, almost diplomatic, quasi-foreign policy-esq capacity. Finally, the discretionary may21 preceding the entire provision of cooperation implies that this is a decision which should be left to the Pre-Trial Chambers, whose “role is essentially to supervise how the OTP carriers out its investigatory and prosecutorial activities”22 according to the ICC in Understanding the Court.23

Given the historical practice of the OTP as leading the direction of the Court, along with its mandate to act independently on matters of investigation, I suspect the Prosecutor will have an outsized role in handling and deciding when and how to cooperate (even though the law is ambiguous on this). According to the ICC, it is in fact the OTP that has the responsibility. Part of the OTP is The Jurisdiction, Complementarity, and Cooperation Division, one of the four divisions that make up the OTP.24 In order to implement active participation in national court prosecutions, it would be advisable to increase the staffing of this division, which currently has approximately twelve employees, who are primarily former diplomats rather than lawyers. Shifting resources from two-hundred attorney strong Prosecution Division, or one-hundred employee Investigative Division, is one route to accomplish this. However, doing so would likely lead to less prosecutions at the ICC. This is a pragmatic reality that the OTP surely will contemplate. In the long run, the capacity building that this may lead to in national courts should have a force-multiplier effect, thus expanding the pie and encouraging less of a zero-sum calculation.

Some of this confusion is attributable to the mixed, international nature of the Treaty, which was drafted and negotiated by many countries (including the United States, even though it is not a signatory). These stakeholders came from mix of civil and common law traditions, which take differing views on the separation of prosecutors and judges.25 My focus on this may just as well be overblown, coming from a federalist system that strongly emphasizes delegated powers, and forgetting that the ICC is not itself a federated, sovereign state.26 Regardless, the decision to cooperate or not cooperate seems like an opportunity ripe to become politicized, whether it is at the hands of prosecutorial discretion or judicial decision. For instance, while the United States is not a State Party, under the Rome Statute it also has the right request for cooperation, which the Court may or may not agree to provide.

As stated in Article 93(10)(c), the ICC generously expands the offer of investigatory and trial assistance to non-signatories:

The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.27

It is conceivable that the United States may seek evidence collected by the OTP for use in domestic prosecutions of arms traffickers, terrorists, or drug smugglers, among others. Given that the United States has at times had a very hostile relationship with the ICC, to the point of sanctioning the entity and its personnel, would it be expected that the OTP or other organ of the Court share evidence? According to the discretionary may in Article 93, it is fully within the Court’s prerogative to decide to cooperate with such a request, for ostensibly whatever reason it sees fit. The potential for politicization of such cooperation may lead to an unfair application of justice, where a national court’s access to ICC gathered evidence, or trial assistance, depends on the requesting State’s present relationship with the Court (or the OTP in particular). Such an outcome could prejudice the rights of victims, who might be denied justice due to the forces greatly beyond.

For instance, if a perpetrator of genocide resided in the territory of a non-State Party and that country had the jurisdiction and desire to prosecute but lacked evidence in the ICC’s possession necessary to obtain a conviction, that perpetrator could go unpunished but-for the ICC’s cooperation.28 If that cooperation depended on politics or other biases against that national court, this would go against the object and purpose of the Treaty to “put an end to impunity for perpetrators of these [most serious] crimes”29 and would be against the interests of justice30 generally.

Conversely, Article 93 seems to prejudice the rights of the accused by specifying that the requestor must be a State Party31 or other “State which is not a Party to this Statute.”32 This explicitly prohibit individuals or non-state organizations from making such a request. For instance, if an accused individual believes the Court is in possession of exculpatory evidence, Article 93 provides no route of evidence sharing, other than a formal request by a State. Thus, for a defendant in a national court proceeding to obtain such evidence, he or she would be required to petition the national government that is bringing the case against them, or potentially a third-party State, to submit a request on their behalf to the ICC. Article 96 gives precise—and potentially onerous—rules that this request must follow.33 This is an additional procedural barrier which prejudices the accused when being tried in a national court setting, and which seems to go against the rights of the accused enshrined including the right to a “fair hearing conducted impartially…in full equality.”34 While these rights are intended to accrue to the accused during a trial before the ICC, that they would not be respected when the ICC has used its discretionary authority and semi-sovereign resources to gather evidence, especially when that evidence may be exculpatory, seems to be an affront to the generally accepted principle of prompt dissemination of exculpatory evidence and not in the interest of justice.

This principle is codified in Article 67(2):

[T]the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.35

Where the Prosecutor seeks and fails to prosecute a perpetrator at the ICC, is he or she likely to volunteer such exculpatory evidence during a trial before a national court, especially when there is no express obligation to so?

It seems reasonable that jurisdictional complexities and the limited resources of the OTP may serve as convincing excuses for the Prosecutor failing to disclose exculpatory evidence during a national proceeding, resulting in injustice based on personal or institutional bias. Or to disclose in a manner that is consistent with the Prosecutor’s current relationship with the State in which a universal jurisdiction prosecution is being held, resulting in injustice based on political bias. As such, Article 93’s version of one-sided cooperation is biased against the defense of the accused in a national prosecution.36 This is in line with arguments put forward by many scholars that prosecutors in general, and the ICC’s Prosecutor in particular, have an imbalance of power due to the State’s greater resources and influence.37 To avoid these biases, the OTP should develop an apolitical evidence sharing system that is equally accessible to State prosecutors as well as defendants.

The ICC’s online digital archive, accessible to anyone who registers, seek to accomplish. However, in practice the vast sums of data contained within it are hard to navigate and there is a high likelihood that evidence that would be useful in a national investigation or trial may be missed, by either side. Improving the search functions of this archive and mandating that the OTP update it with exculpatory evidence as it is discovered, even after the Court has determined it will not proceed with a trial, would help to ensure prosecutorial bias does not hurt justice in national courts. Similarly, increasing the searchability of the data will make national investigations more efficient. This could be achieved through trainings, led by the OTP or the Registry, with prosecutors and investigators in States that practice universal jurisdiction.

III. Extent of Authorization to Cooperate: More Comments on Evidence

The scope of cooperation is also exceptionally broad under Article 93. The assistance which the Court may be provide to States is defined as being provided, inter alia.38 The use of inter alia, or “among others”, gives the OTP broad authorization to help requesting States in nearly anyway it sees fit, with some minor caveats. One of these caveats, found in Article 93(10)(b)(i)(a), demands that before providing a requestor evidence that the ICC procured with the assistance of a State, it must obtain that State’s consent.39 For example, if a State’s national police gathered evidence against an accused through a wiretap that it then provided to the ICC, the ICC must get the State’s consent before sharing the tapes with the requesting third party State. Generally, the ICC collects evidence independently, i.e., it is rarely relies on the State to help it collect physical evidence. As such, this caveat does not come up often in practice. Were the Court to more frequently investigate matters in developed countries, it is likely that State assistance in investigations would be more commonplace, as a result of increased State capabilities and more democratic political landscapes, which may lead to this caveat being triggered more frequently. The Court has shown interest in handling a more diverse range of cases, including against American officials, which have also been taken up by national courts on universal jurisdiction grounds.40 As such, it is conceivable that requests for evidence that was provided to the ICC by States will increase over time. For example, if an Eastern European State provided the ICC with evidence regarding a U.S. black site prison operating in its territory, and then France requested access to the same evidence for use in a domestic prosecution of U.S. officials under a universal jurisdiction doctrine, the Eastern European State’s consent would be required under Article 93. Political pressure may strongly influence whether such a State grants this consent, especially if the government that initially provided the evidence to the ICC has changed, or if its government’s relations with the United States have deteriorated. A solution for this may be that the OTP seeks irrevocable consent for future dissemination of such evidence upon the receipt of it, in the event that it is requested for use by a third-party national prosecution of the same or similar crimes for which it it was provided to the ICC. This seems like a viable contractual work around to obligate the provider and insure against politically motivated changes of heart.

Additionally, the Rome Statute explicitly makes no assurances on the relevance or admissibility of evidence collected by a State on that evidence’s admissibility in the State’s national courts.41 Ostensibly, the same consideration would apply to the relevance or admissibility of evidence in other States’ national courts. However, that is not what the Rome Statute says. That is left up to national courts to determine, likely due to sovereignty concerns. This provides the OTP an opportunity to help other national courts pursuing universal jurisdiction prosecutions. Firstly, it could seek formal decisions from Chambers on the credibility of evidence, which may carry persuasive, or even binding authority in national courts, depending on the national law.42 Secondly, OTP personnel could serve as expert witnesses themselves in universal jurisdiction trials conducted in third-party national courts, something that is not explicitly prohibited in the Rome Statute. While they would not have official authority, and may not even be testifying in their capacity of an ICC employee, given their extensive training and experience in the area, they would be uniquely qualified to opine on the credibility of evidence collected in war zones and post-genocide societies. Through expert witness work as well as the Courts own decisions, the ICC has potential to help set global standards such evidence. The OTP can promote this further by pushing the Court to give detailed analysis in their decisions, for the standards used to determine credibility and admissibility, and encourage it to rule on the credibility of evidence that might otherwise be seen as superfluous for the case at hand, but which may have significant value to future prosecutions in other courts.

IV. Other Opportunities for the ICC to Help in Capacity Building at the National Level

Where there is the greatest potential for the OTP to help national courts be more effective in is through capacity building. Article 93 gives the ICC broad authorization to help States investigate, and even assist in trial of, Article 5 Crimes and other serious crimes.43 Given the rarity of prosecuting crimes brought under the universal jurisdiction doctrine, namely Genocide, War Crimes, and Crimes Against Humanity, the OTP likely has more experience litigating such matters than the vast majority of national prosecutors. As such, the OTP is in a unique position to help national courts develop capacity to handle these matters. Firstly, the OTP allow the Prosecutor and Deputy Prosecutor, as well as the other attorneys in the OTP, to petition national courts to serve pro hac vice or in other, hands-on direct capacities during universal jurisdiction cases. Second, the OTP should develop a department specialized in drafting amicus briefs for use in national proceedings, summarizing their take on the issues presented. Third, the OTP should develop a program where it trains national prosecutors on how to build and litigate Article 5 Crimes. By using these capacity building methods, the Court could encourage the domestic prosecution of Article 5 Crimes, promoting the principle of complementarity, while supporting also national courts that are pursuit of universal jurisdiction.

A. Providing ICC Prosecutorial Staff to National Courts

The OTP could become a more effective partner to national governments’ prosecutions by loaning its prosecutors to requesting States investigating and prosecuting serious crimes that the OTP has unique expertise in handling. Genocide, war crimes, and crimes against humanity are inherently complex. The investigation and prosecution of these crimes require collecting evidence in active or former warzones where witnesses are vulnerable, physical evidence is hard to preserve, and where a variety of complex legal doctrines collide. From persuading a court to accept the State’s position on gravity or disproportionality, to helping investigators dissect the culpability of former child soldiers in the recruitment of new child soldiers, the range of issues presented when prosecuting such atrocities requires a high degree of specialization. Given the infrequence of such crimes, and their prosecutions, few domestic prosecutors’ offices are equipt to adequately handle these matters as proficiently as the OTP. Thus, the OTP should make their personnel available to help national courts navigate these issues directly, by actively helping prosecutors try cases, in a pro hac vice capacity,44 or simply by consulting with prosecutors and investigators as they prepare for trial on a particular matter.

If the ICC were to take a more proactive role in deploying its current and former prosecutorial staff to practice in national courts, the ICC could develop into what it was intended to be—a court of last resort. While such representations would require the national law to allow for this, it is reasonable that nations which have warmed to universal jurisdiction, will also be amendable to this. Similarly, developing nations interested in increasing their overall prosecutorial acumen and signaling their compliance with human rights would also likely accept.

However, this could also be viewed by defendants and the public as giving the State an unfair upper hand in prosecutions and an unreasonable allocation of State police power to a non-citizen. In some jurisdictions, prosecutors are themselves technically part of the judiciary with enhanced legal protections and status, such as in France and Italy,45 raising further concerns over accountability and sovereignty. Where a noncitizen is handling a prosecution, the ability of the State and the public to hold them accountable for misconduct also may arise. These issues could be avoided by matching OTP personnel to Article 93 requests, based on their citizenship and where they are already authorized to practice. The goal of these joint representations would be to ensure the highest caliber of legal services are brought bear on serious matters and to give national prosecutors hands on training and mentorship. As previously discussed, this would also involve a reduction in staff available for ICC investigations and prosecutions.

B. OTP Drafted Amicus Briefs

Second, the OTP and other organs of the Court could issue amicus briefs or other declaratory statements on general international criminal law standards and on particular active matters, at the request of a State. Such observatory documents could prove to be useful in helping inexperienced prosecutors and judges analyze issues which the ICC has extensive experience dissecting. For the reasoned discussed earlier, this may lead to unfair outcomes given that only the State can make such requests. Additionally, both this and the prior suggestion may conflict with the Prosecutor and Deputy Prosecutor’s obligation not to engage in activities that interfere with their duties or affect confidence in their independence.46 The OTP’s Legal Advisory Section would likely have to opine on whether these suggestions go beyond what the Rome Statute authorizes. Over involvement in national court prosecutions, even through persuasive authority, may be construed as overly interventionist. Such a characterization could lead to further resistance to the ICC from the United States, Russia, China, and other global powers, which could lead to cut funding and encourage their allies to withdrawal. Nonetheless, if done legitimately, such persuasive briefings could be of great value. They could help States’ local prosecutors develop stronger arguments and help domestic courts adopt better reasoning in their published decisions, potentially leading to more robust, globally standardized precedents.

C. OTP Sponsored Formal Training Program and Specialization for National Prosecutors

Third, the OTP should institute a formal training program for prosecutors from States with universal jurisdiction laws or a need to develop skills to prosecute serious domestic crimes. Such a programs could consist of an apprenticeship or clerking program where national prosecutors work under seasoned OTP attorneys directly at the Hague, a specialization process for national prosecutors accredited by the ICC or ran directly by the OTP, as well as classroom-based training programs. This would encourage complementarity, through capacity building, and the application of universal jurisdiction. Additionally, it would fit well within the object and purpose of the Rome Statute to promote effective prosecution at the national level in order to enhance international cooperation and ensure an end to impunity for perpetrators of atrocities.47

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Human Rights Watch, Basic Facts on Universal Jurisdiction (Oct. 19, 2009), available online. ↩

2. 2.

   Id. ↩

3. 3.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], available online. ↩

4. 4.

   Id. Art. 5

   (noting, however, its ability to adjudicate the crime of aggression remains theoretical). ↩

5. 5.

   Monique Cormier, Universality as a Legal Basis for ICC Jurisdiction, in The Jurisdiction of the International Criminal Court over Nationals of Non-States Parties 159 (Aug. 6, 2020), paywall, doi

   (discussing the validity of universal jurisdiction as an acceptable basis for the Court’s authority but ultimately concluding that there is no advantage to characterizing the ICC’s authority as arising from any universality model rather than treaty created, delegated jurisdiction). ↩

6. 6.

   Rome Statute, supra note 3, at Preamble. ↩

7. 7.

   International Criminal Court, Understanding the International Criminal Court 11 (2020) [hereinafter Understanding the ICC], available online. ↩

8. 8.

   See generally, Valérie Paulet, Trial International, Evidentiary Challenges in Universal Jurisdiction Cases (2019), available online. ↩

9. 9.

   See Mohamed Ali Samantar v. Bashe Abdi Yousuf et al., 560 U.S. 305 (Jun. 1, 2010), available online.

   (In this case the United States Supreme Court dismissed an Alien Tort Act claim involving a high-ranking former Somalian official accused of torture, reasoning that even after overcoming the petitioner’s immunity defense on jus cogens grounds, it would be impossible for the accused to mount a fair defense without joining the government of Somalia and its current head of state—who would be entitled to sovereign immunity. While this case pertained to a civil matter brought in the United States—a nation that is generally averse universal jurisdiction—it highlights the procedural complexity that can arise when national courts seek to apply universal jurisdiction in criminal matters). ↩

10. 10.

    Sudan Says Will “Hand Over” al-Bashir to ICC for War Crimes Trial, Al Jazeera, Aug. 12, 2021, available online.

    (This has been a major issue facing the ICC, where they simply cannot prosecute due to failing to secure the extradition of an accused. For example, former Sudanese President Omar al-Bashir has been under ICC indictment for over twelve years for genocide and other Article 5 Crimes. As of this writing, the ICC has failed to secure his extradition to the Hague for prosecution. This is despite an agreement with the country’s new leadership and rebels, following a coup d’état, to ratify the Rome Statute and hand over al-Bashir. He remains imprisoned locally on comparatively minor corruption charges). ↩

11. 11.

    See also, Christopher Keith Hall, Amnesty Int’l, Universal Jurisdiction: The Challenges for Police and Prosecuting Authorities 11–17 (Jun. 2007), available online. ↩

12. 12.

    Rome Statute, supra note 3, at Art. 93(10). ↩

13. 13.

    Id. ↩

14. 14.

    Definition of Pro hac vice, Wex, available online (last visited Aug. 29, 2023). ↩

15. 15.

    Rome Statute, supra note 3, at Art. 93(10). ↩

16. 16.

    Id. ↩

17. 17.

    Id. Art. 34. ↩

18. 18.

    Id. Art. 42(1). ↩

19. 19.

    Id. Art. 43. ↩

20. 20.

    Understanding the ICC, supra note 7, at 17. ↩

21. 21.

    Rome Statute, supra note 3, at Art. 93(10). ↩

22. 22.

    Understanding the ICC, supra note 7, at 20. ↩

23. 23.

    Id. at 9. ↩

24. 24.

    Id. at 21. ↩

25. 25.

    In civil law jurisdictions, the prosecutor is more of an organ of the court, often working hand-in-hand with the judge to make the State’s case. In contrast, in common law jurisdictions, which are typically more adversarial, the judge is supposed to be a neutral referee. The insistence on the OTP being an independent organ that wields large powers, yet is not serving in a judicial capacity, may stem from the compromises that went into drafting the Rome Statute. ↩

26. 26.

    Though some, including former Prosecutor Luis Moreno-Ocampo, regard the ICC as a confederation of sorts. ↩

27. 27.

    Rome Statute, supra note 3, at Art. 93. ↩

28. 28.

    Id.

    (Similarly, if a perpetrator resided in the territory of a State Party and the ICC was unable to compel extradition, the same analysis would apply). ↩

29. 29.

    Id. at Preamble ¶¶ 5–6. ↩

30. 30.

    See id. Art. 53(1)(c), Art. 53(2)(c).

    (This theme is woven throughout the Rome Statute, in particular around indictment and issues of prosecutorial discretion where it serves as the standard against which the OTP is supposed to weigh whether or not to bring a case). ↩

31. 31.

    Id. Art. 93(10)(a). ↩

32. 32.

    Id. Art. 93(10)(c) (emphasis added). ↩

33. 33.

    Id. Art. 96. ↩

34. 34.

    Id. Art. 67(1). ↩

35. 35.

    Id. Art. 67(2). ↩

36. 36.

    This is especially true in an adversarial system of law, such as in the United States or United Kingdom, comparatively to France and other jurisdictions that follow inquisitional systems of law. As prosecutors in adversarial jurisdictions are often incentivized to achieve justice by any means necessary including taking advantage of procedural advantages that allow for the suppression of inadmissible evidence. ↩

37. 37.

    Hall, supra note 11, at 17

    (discussing that this is especially relevant when evidence is sourced from transitional governments). ↩

38. 38.

    Rome Statute, supra note 3, at Art. 93(10). ↩

39. 39.

    Id. Art. 93(10)(b). ↩

40. 40.

    See Universal Jurisdiction: Accountability for U.S. Torture, CCR (Sep. 8, 2021), available online (last visited Aug. 29, 2023). ↩

41. 41.

    Rome Statute, supra note 3, at Art. 69(8). ↩

42. 42.

    Some States, such as South Africa, explicitly incorporate international law into their body of law. ↩

43. 43.

    Id. Art. 93(10)(a). ↩

44. 44.

    Jenia Iontcheva Turner, Transnational Networks and International Criminal Justice, 105 Mich. L. Rev. 985, 987–88 (Mar. 2007), available online

    (advocating for supranational prosecutors to help overcome the “globalization paradox”). ↩

45. 45.

    Scott Beazley, Nicholas Cowdery & Pierre Rosario Domingue, The Status and Role of Prosecutors, UNODC (Nov. 2014), available online. ↩

46. 46.

    Rome Statute, supra note 3, at Art. 42(5). ↩

47. 47.

    Id. at Preamble. ↩

The first widespread exercise of universal jurisdiction occurred as a result of the crime of piracy, which is the act of attacking or robbing ships at sea.4 Every state has long had legislative, adjudicatory, and enforcement jurisdiction over all piratical acts on the high seas.5 Universal jurisdiction also has strong historical roots in the slave trade. The universality principle expanded in the postwar trials of individuals who had committed various wartime offenses, including war crimes and crimes against humanity.6 Specifically, it was brought against Nazis following World War Two. Universal jurisdiction was exercised against Adolph Eichmann, a Nazi official who was abducted by Israeli agents in Argentina and brought to Israel for trial due to his war crimes or crimes against humanity.7

B. Universal Jurisdiction and Victims

To exercise universal jurisdiction is to protect the interest and desires of the victims of heinous crimes. This is because any justification for exercising universal jurisdiction is based on the impact of the crime on the victim. Since universal jurisdiction cannot be justified through the place where the crime happened or the citizenship of the people to whom the crime happened, universal jurisdiction is justified based on the “underlying nature of the crime.”8 More specifically, universal jurisdiction is commonly “explained on grounds that certain international crimes are so heinous that they “shock the conscience of humanity.”9

This justification was used in the earliest form of universal jurisdiction in piracy. Universal jurisdiction was applied in part because “pirates were considered to have waged war [against]…all states,”10 were considered the enemies of all humanity, and involved “particularly heinous and wicked acts of violence or depredation.”11 Similarly, slave trade practices were subjected to universal jurisdiction because of the “gravity of the crime against a person’s liberty.”12 This justification can be seen again in the case of Nazi Germany, where the “shared abhorrence [was felt by] all civilized nations for the serious criminal activities committed in the course of the Second World War”13 and the crimes were believed to be “so monstrous”14 that they could not be condoned.

This justification can be seen clearly in an example Devika Hovell outlines in her paper examining the authority of universal jurisdiction:

For example, if Saudi Arabia, Pakistan, Somalia, Taiwan and the Philippines were to enter into a treaty agreeing to prosecute anyone found in their territory suspected of adultery regardless of the nationality of the offender or the state in which the conduct occurred, would the existence of the treaty obligation between these states render the prosecution of a UK citizen for adultery committed in the UK justifiable? One is tempted to answer “no”. However, the only basis upon which we can distinguish this from the torture example is by looking to the underlying nature of the crime. The source of jurisdiction does not derive ultimately from the treaty obligation but from a deeper sense that certain crimes are justifiably of broader concern such that third states are justified in prosecuting them.15

Devika’s example shows that it’s not just that certain territories agree to exercise jurisdiction over any crime and universal jurisdiction may magically apply. Rather, universal jurisdiction is based on an idea that there are certain kinds of crimes that intuitively feel ickier than others. I would argue that what makes piracy or the slave trade or crimes against humanity more despicable than something like adultery is how those crimes impact the victims. First, the impact lies in the number of victims. Where slave trade and piracy which may impact hundreds of thousands of people, adultery may impact a dozen or less. There is also a greater impact on what actually happens to the victims. Whereas slaves are brutalized, humiliated, raped, and physically beaten, pain resulting from adultery is almost certainly less severe.

This logic is spelled out explicitly in Miram Cohen’s paper describing the parallels between piracy and human trafficking in exercising universal jurisdiction. Cohen outlines two rationales for universal jurisdiction: (1) how widespread the effect of the crime and (2) the grave nature of the crime.16 Both of these rationales are directly connected to the protection of victims. The widespread nature of the crime relates to the sheer number of victims impacted. As Cohen points out, universal jurisdiction was exercised against pirates because their attacks were “made without regard to the vessel’s flag or the nationality of the victims.”17 The gravity justification relates to how serious the impact of the crime on the victim was. According to Cohen, these are crimes that are so harmful to victims that they endanger international peace and security.18 As such, universal jurisdiction envisages a responsibility on the part of the international community to protect people from human rights violations.

Universal jurisdiction is more than just protecting State interest. It’s about protecting people against states. It’s not about the States. It’s about people. It’s about victims. And in the eyes of exercising universal jurisdiction, it hardly matters who the victim is. Or where the victim lives. Or if the victim’s trauma has any economic impact on some occupied land. When all those factors are stripped away, all that’s left are the victims.

C. OTP and Victims

The OTP of the ICC cannot exercise universal jurisdiction without victims. First, victims are typically the ones alerting the ICC to the crimes. Victims also get the case off the ground by:

[I]nitiating the complaints and providing the authorities with essential information, including the location of the suspect, the nature of the accusations and the names of potential witnesses living in the host state or overseas.19

At the trial stage, victims also serve as key fact and emotional witnesses to the atrocities.

This extraordinary role in prosecutions makes sense. Cases against perpetrators literally would not exist without the victims. Victims are the ones most impacted by the crimes. They suffer the primary harm—the harm of the crime.20 Victims and their families must deal with the lifelong ramification of those crimes. Thus, “criminal law does not perform its role adequately, if it does not pay attention to the needs of the victim.”21

II. How the OTP Take a Victim-Centric Approach When Trying Cases

A. How Much Should Victims Be Involved in the Trials?

Throughout criminal law, there is a wide spectrum regarding how involved victims should be in prosecutions with two opposite extremes. On one side is the theory that victims should be minimally involved. This practice is most common in adversarial systems that “pit prosecutor against defendant”22 and in common law jurisdictions. These systems envision the victim’s role as being limited to that of a witness, who “can only speak if called by the prosecution (or defense) and can only answer questions that are posed to him or her.”23 On the opposite end of the spectrum is one where victims have extensive participatory rights. This is more common in civil law jurisdictions. For example, victims in Argentina can have a victim prosecutor who can do anything from submitting declarations to reviewing and presenting evidence to examining witnesses.24

B. The ICC v. the Prosecutor—Opposite Sides of the Spectrum

The ICC chambers and the OTP have often fallen on opposite sides of the victim participation spectrum. The ICC consistently favors more participatory rights for victims rather than less. According to the Rome Statute:

[W]here the interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.25

In practice, Pre-Trial Chamber II has interpreted this provision broadly, that is, in a way that allows for more victim participation. Pre-Trial Chamber II has held that Article 68(3) permits victims to participate in proceedings relating to the investigation of a situation and that victims are permitted to question witnesses and introduce evidence.26

On the other end of the spectrum is the Prosecutor. They have consistently opposed the Chamber’s liberal interpretation of the Rome Statute in favor of a narrower view that allows for limited victim participation. According to the OTP, “modalities of participation may not infringe upon the parties’ rights or overlap with the exclusive functions of the Prosecution.”27 This source of tension may be attributable to the fact that the Prosecutor’s express goals are to “hold perpetrators of grave crimes accountable for their actions.”28 As a result, the OTP is not so focused on doing what is best for the victims or ensuring victim participation, especially when doing so might mean sacrificing their case. In fact, to the Prosecutor, too much victim participation disrupts other important interests and functions, like getting a guilty verdict. The Prosecutor has opposed victim participation at the investigation and trial stage of a prosecution, on the basis that victims divert the focus of their investigation, frustrate the prosecution of the defendant, undermine the prosecutor’s trial strategy and potentially increase the cost of prosecution by prolonging proceedings.29

To be sure, it would be unfair to say that victims’ rights and desires do not influence the prosecutor in any way. At times, the prosecutor’s goals can be harmonious with victim’s interests. The first and former Prosecutor of the ICC Luis Moreno-Ocampo explicitly stated that he was “guided by the interests of the victims”30 in the 2004 Ugandan case. And even in instances where the prosecutor may be eager to get a conviction, victims are not doomed to be forgotten. In theory, aggressive prosecution policies, such as those guiding American domestic violence prosecutions, are grounded in the theory that they increase victim safety.31 However, there is a difference between having victims in mind when making decisions and prioritizing them. There is a difference between having goals to prosecute which may or may not happen to benefit victims and ensuring that victims are benefited. There is a difference between guided by the interest of victims and allowing those interests to dictate major decisions. I would argue that when attempting to exercise universal jurisdiction, the OTP should strive to do the latter.

C. What Should the OTP Do to Promote the Interest of the Victim?

Exercising universal jurisdiction may begin with a mental shift in the prosecutor. This could mean a shift in how the prosecutor conceptualizes the end goal of a trial. Rather than seeing the primary goal as imprisoning the perpetrator, the prosecutor could envision the primary goal is to make victims whole. Rather than seeing the trial as a pitched, two-sided battle,32 the prosecutor could see it as an opportunity to get justice for the victims. And rather than seeing victims as key witnesses or tools to accomplish the verdict, the prosecutor could see them as human beings with needs and feelings beyond the four corners of a courtroom.

Once the OTP reframes how he thinks of trials and victims within them, the OTP should determine what victims actually need and want out of the prosecution. Following a warning made by Timothy Kuhner in his paper discussing victims in the ICC, the OTP should be mindful to distinguish what victims actually want from what they should want, as relying on assumptions can lead to an Office that is paternalistic.33 The prosecutor should also be mindful that not all victims want the same thing and victims’ interests can be expected to vary between cultures.34 Then, the OTP should ask detailed questions and listen closely to what the victims say. They may find that some victims want protection.”35 Others may want offenders to be prosecuted and punished.36 Others may simply want to tell their stories about what happened.37 And others may want the autonomy and power to make meaningful decisions about what happens to the perpetrators.38 Whatever the desires, it’s the Prosecutor’s responsibility to find out what they are and how to best try a case to further those goals.

And once the prosecutor gets to the trial stage, the focus should not move away from those identified interests. Rather than asking about the ideal trial strategy for the defendant’s prosecution, the OTP’s main question should be this: what should happen in this trial that will accomplish the victim’s goals? This means the prosecutor should determine not merely what the defendant did but how those actions harmed the victim and how a prosecution can best serve them.

This also means the degree of victim participation exercised in any given trial should turn on the impact that participation has on the victim. In cases where the victim needs therapy, to restore their dignity, to contribute to the reconciliation process, or simply to tell their story, victim’s participation should be paramount. This can mean allowing the victim the chance to give an opening statement that may or may not help the trial but will give the victims a public space to tell their story and be validated. This should be the case even when doing so would negatively impact the trial strategy. In cases where the victim needs to heal outside of the process, where retelling that story may lead to retraumatization, the prosecutor should remove the victim from the process as much as possible. This should be the case even if doing so would mean the Prosecutor loses a key witness. In essence, when the Prosecutor has to choose between the verdict and the victim, the Prosecutor should choose the victim.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 Tex. L. Rev. 785, 788 (1988), paywall. ↩

2. 2.

   Miriam Cohen, The Analogy Between Piracy and Human Trafficking: A Theoretical Framework for the Application of Universal Jurisdiction, 16 Buff. Hum. Rts. L. Rev. 201, 209–10 (2010), available online. ↩

3. 3.

   Gabriel Bottini, Universal Jurisdiction After the Creation of the International Criminal Court, 36 N.Y.U. J. Int’l L. & Pol. 503, 508 (Dec. 2004), paywall. ↩

4. 4.

   Randall, supra note 1, at 785. ↩

5. 5.

   Id. ↩

6. 6.

   Id. ↩

7. 7.

   Devika Hovell, The Authority of Universal Jurisdiction, 29 EJIL 427, 442 (May 2018), available online, doi. ↩

8. 8.

   Id. ↩

9. 9.

   Id. ↩

10. 10.

    John Reynolds, Universal Jurisdiction to Prosecute Human Trafficking: Analyzing the Practical Impact of a Jurisdictional Change in Federal Law, 34 Hastings Int’l & Comp. L. Rev. 387, 392 (2011), available online. ↩

11. 11.

    Randall, supra note 1, at 785. ↩

12. 12.

    Reynolds, supra note 10, at 387. ↩

13. 13.

    Hovell, supra note 7, at 440–41. ↩

14. 14.

    Id. ↩

15. 15.

    Id. at 427. ↩

16. 16.

    Cohen, supra note 2, at 216. ↩

17. 17.

    Id. at 217. ↩

18. 18.

    Bottini, supra note 3, at 547. ↩

19. 19.

    Hovell, supra note 7, at 450. ↩

20. 20.

    Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, 1999 Utah L. Rev. 289, 318 (1999), available online. ↩

21. 21.

    Timothy K. Kuhner, The Status of Victims in the Enforcement of International Criminal Law, 6 Or. Rev. Int’l L. 95, 134 (2004), available online. ↩

22. 22.

    Charles P. Trumbull IV, The Victims of Victim Participation in International Criminal Proceedings, 29 Mich. J. Int’l L. 777, 781 (2008), available online. ↩

23. 23.

    Id. ↩

24. 24.

    Id. ↩

25. 25.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 68, available online. ↩

26. 26.

    Trumbull IV, supra note 22, at 795. ↩

27. 27.

    Id. at 796. ↩

28. 28.

    J. Alex Little, Balancing Accountability and Victim Autonomy at the International Criminal Court, 38 Geo. J. Int’l L. 363, 368 (2007), available online. ↩

29. 29.

    Trumbull IV, supra note 22, at 809. ↩

30. 30.

    Little, supra note 28, at 378. ↩

31. 31.

    Id. at 382. ↩

32. 32.

    William T. Pizzi & Walter Perron, Crime Victims in German Courtrooms: A Comparative Perspective on American Problems, 32 SJIL 37, 55 (1996), paywall. ↩

33. 33.

    Kuhner, supra note 21, at 139. ↩

34. 34.

    Id. at 133. ↩

35. 35.

    Id. at 134–35. ↩

36. 36.

    Id. at 135. ↩

37. 37.

    Id. at 137. ↩

38. 38.

    Id. at 138. ↩