Elizabeth Evenson, Balkees Jarrah, Elise Keppler, Juan Pappier, and Param-Preet Singh join JiC for this first instalment in our joint symposium with EJIL:Talk! on the ICC’s impacts on national justice. Elizabeth, Balkees, Elise, Juan, and Param-Preet are staff members of Human Rights Watch and the authors of the organization’s May 2018 report, Pressure Point: The ICC’s Impact on National Justice; Lessons from Colombia, Georgia, Guinea, and the United Kingdom.
The International Criminal Court (ICC) is a court of last resort. Under the court’s treaty, the Rome Statute, which marks its 20th anniversary this year, the world’s worst crimes are admissible before the ICC only if national authorities do not genuinely investigate and prosecute cases. Far from simply a jurisdictional limitation, this principle of “complementarity” transforms the ICC from a single institution into a broader system for prosecuting international crimes, rooted in national courts.
Bolstering national proceedings is crucial to giving full effect to the Rome Statute system. It’s also necessary to broaden victims’ access to justice. The number of situations in which the ICC should act is probably far greater than the court’s founders envisioned. The ICC’s limited resources—provided all too sparingly by its member countries—mean it is struggling to keep up.
More attention should be paid to the ICC’s potential as an active player on national justice. Under the concept of “positive complementarity” it can serve as part of a wide array of efforts to press and support national authorities to carry out genuine investigations and prosecutions. The ICC is not a development agency, but it can lend expertise, broker assistance between other actors, and maintain focus on the need for accountability.
This is the case when the ICC opens its own investigations, as there will be a need for additional domestic investigations and prosecutions to bring comprehensive accountability. But the ICC’s Office of the Prosecutor has a particularly important role to play when it is still considering whether to open an investigation, during “preliminary examinations.”
This is because the prosecutor’s office has unique leverage in some of these preliminary examinations. If national authorities have an interest in avoiding ICC intervention, they can do that by conducting genuine national proceedings. By making the most of this leverage, the prosecutor’s office can be an effective catalyst for justice. The office recognizes that opportunity and has made it a policy goal to encourage national proceedings when it is feasible.
Human Rights Watch supports these efforts, given that they could help extend the reach of justice. But building on a set of 2011 recommendations, we wanted to take a fresh look at whether and how this policy is working, with a view toward strengthening its effect.
Our findings are set out in a May 2018 report, Pressure Point: The ICC’s Impact on National Justice; Lessons from Colombia, Georgia, Guinea, and the United Kingdom.We assessed the extent to which the prosecutor’s office had pushed forward the investigation and prosecution of ICC crimes relevant to its preliminary examinations in these countries. We interviewed government officials, investigating and prosecuting authorities, judges, members of civil society groups, journalists, and representatives of diplomatic missions and UN agencies, about 140 people in all, as well as staff in the ICC prosecutor’s office.
Our research makes clear that it is important not to overstate the prospects for success.
Of these four countries, trials of relevant crimes have, for the most part, only taken place in Colombia. And there- where we looked at one aspect of the ICC preliminary examination, the unlawful killings that military personnel officially reported as lawful killings in combat, known as “false positive” killings—proceedings against high-ranking military officials have been marked by prolonged delays, in spite of hundreds of cases against low- and mid-level soldiers.
There are persistent and stubborn obstacles to trying the most serious crimes before national courts. Objective factors—such as the peace process in Colombia or the cross-border nature of the Georgia-Russia conflict—also place significant constraints on what the preliminary examinations can achieve to spur national justice. And the prosecutor’s office, with only 13 staff members in its preliminary examinations unit, has limited resources for this work.
There are also clear differences between these case studies that affect the ability to catalyze national prosecutions. They include political context, crime base, public interest in and demand for accountability, and the interest of other actors, including international donors. In addition, the engagement of the prosecutor’s office with the four countries varied, including as OTP practice shifted and consolidated with time. Its engagement has been most significant in Guinea, followed by Colombia, and far more limited both in Georgia, where the preliminary examination has proceeded to a full investigation, and the United Kingdom.
And yet, in each situation, our research identified positive steps that are at least partly attributable to ICC engagement.
There has been the most substantial impact in Guinea. While the case has yet to go to trial, over time, the prosecutor’s office, as an external pressure point, seems to have spurred progress by national officials, along with the engagement of other key international actors. Its close scrutiny of developments in the case and attention to further steps that were needed appears to have helped lead to the completion of the national criminal investigation into the September 2009 stadium massacre. This development exceeded the expectations of local activists and lawyers about what could be achieved in the local system.
Effects in other situations have been less significant or durable, but nonetheless real.
In Colombia, the involvement has yet to prove effective to overcome equivocal political will nationally to prosecute high-ranking officials—a significant challenge—but it has kept the need for accountability for “false positive” killings on the table. It has also been a factor in developing relevant prosecutorial strategies, expediting progress in cases against mid and low-level defendants, and countering one legislative proposal that might have undermined prosecutions.
In Georgia, while the prosecutor’s engagement with the authorities did not overcome significant obstacles to effective national proceedings, it appears to have initially spurred a certain amount of investigative activity. And in the United Kingdom, by subjecting existing domestic efforts to another level of scrutiny, the preliminary examination may have discouraged British authorities from discontinuing relevant inquiries into potential abuses by the country’s armed forces in Iraq despite public pressure for them to do so.
Having the ICC in the picture is clearly a plus-factor for justice. It may not be sufficient, and it may not work under all circumstances, but it is important for the ICC prosecutor’s office to make the most of its leverage where it can. Human Rights Watch found, in particular, that there was room for a more assertive approach by the office to strengthen its influence in Colombia.
Human Rights Watch made five key recommendations to increase the Office of the Prosecutor’s influence.
First, the Office of the Prosecutor should seek to move more quickly through the earliest phases of its preliminary examination.
Under current practice, the office defers active encouragement of national proceedings until Phase 3 of its analysis—that is until after it has determined that there are potential ICC cases and is considering whether those cases would be admissible. Even then, the office only takes an active approach if there is an indication that relevant domestic proceedings are already underway or if national authorities have explicitly stated their commitment to such proceedings.
This means that the office is actively working to encourage national proceedings only in a select number of preliminary examinations. These policy decisions also explain the limited engagement in the UK, given that the situation remained in Phase 2 during the period of the Human Rights Watch research.
The office can have an impact even in the absence of active strategies. But the influence with national authorities gets stronger once the office identifies potential cases, including because it permits the office to engage authorities on proceedings relevant to the identified cases. While it makes sense to delay active strategies for encouraging national proceedings to Phase 3, it is important for the office to get there as soon as it can.
Second, the Office of the Prosecutor should seek to increase its engagement, including through more country visits.
A key challenge is to avoid manipulation by government actors. The office needs to open up space for national authorities to act, while being willing—and being seen as willing—to conduct its own investigations if they do not, provided the ICC’s other jurisdictional requirements are met. This is a tough balancing act, with no easy solution. But, in Guinea, the ICC staff’s frequent missions—more than a dozen—appear to have assisted it in determining how to effectively press for progress when national investigations slowed. The office also needs to verify information provided by government authorities, and visits to a country may open up additional sources of information.
Third, the Office of the Prosecutor may need to be more confrontational.
Across our case studies, the key obstacle to further progress in national prosecutions was an absence of political will by officials to support cases.One specific way the office can exert stronger pressure in the face of this resistance is to identify benchmarks for national authorities, as it did in Guinea, for example, the need to visit the crime scene and interview key witnesses. In Colombia, by contrast, more general discussions with national authorities appeared not to have convinced some officials that the ICC would be prepared to open investigations, lessening the office’s influence.
Fourth, increased transparency—particularly through effective use of local and international media—can have benefits.
Transparency can stimulate interest in accountability among the general public, civil society, and international donors, in turn generating more pressure on authorities. Making benchmarks for investigative and prosecutorial steps public can also more credibly assert the ICC’s leverage. And it can equip strategic allies with information regarding the status of proceedings, which can strengthen their advocacy with the government and in turn enable the office to get information that verifies or disputes the government’s account.
The Office of the Prosecutor should put in place clear strategies in its preliminary examinations for informing the public about its work in an accessible and straightforward way. The strategy should avoid a one-size-fits-all approach, which is seldom effective, and be backed by expertise on the relevant media landscape. In the United Kingdom, for example, given hostility in some media sectors to the investigation of military personnel, the office’s communications efforts could have been directed at raising general awareness about the role of the ICC, improving attention to the importance of accountability.
Fifth, the Office of the Prosecutor cannot go it alone.
Unsurprisingly, the office had more influence when its efforts were amplified by others, or when it contributed to amplifying the efforts of others. Guinea, again, stands out. The Office of the Prosecutor, the UN Office of the Special Representative on Sexual Violence, and victims’ associations have served as strategic allies, mutually reinforcing one another’s efforts for justice for the 2009 massacre. In Georgia, by contrast, the office had few such partnerships with international actors. International donors should initiate activities to support national justice as warranted in preliminary examinations, providing the Office of the Prosecutor with potential partners.
Some of our recommendations are specific to the few situations in which the Office of the Prosecutor pursues active strategies to bring about national proceedings. But steps like faster timelines, increased transparency, and efforts by international donors to support positive complementarity can be used across preliminary examinations to amplify even the more passive effects of OTP engagement.
To be effective, however, the office needs adequate resources and it needs its role to be understood by ICC member countries. Earlier attention to positive complementarity within the ICC’s Assembly of States Parties has diminished, as some ICC member countries discouraged the ICC from considering its own role in these efforts. There needs to be a return to a serious discussion by the ICC community of how best to support and encourage national prosecutions and clear political and financial support to the Office of the Prosecutor to play the role it can.