Nelson Camilo Sanchez-Leon joins JiC for the third post in our ongoing joint symposium with EJIL:Talk! on the ICC’s impacts on national justice. Camilo is an Assistant Professor at the University of Virginia School of Law. This piece is greatly influenced by his experience of more than a decade of research and advocacy in Colombia with Dejusticia. He thanks Rachel Davidson Raycraft and the blog editors for comments on a draft version of this post. Opinions expressed are solely his own.
Twenty years since the adoption of the Rome Statute, the concept of “positive complementarity”—the idea that the International Criminal Court (ICC) and national authorities should collaborate to form a two-tiered response to impunity—still represents a bone of contention among scholars and practitioners of international criminal law. Beyond the academic and legal debates over its meaning, it is clear that the ICC’s Office of the Prosecutor (OTP) plays an unusual role in operationalizing the complementarity principle both in policy and in practice. I argue that advancing the OTP in this role, requires comprehensive policy analysis and a critical eye toward case-specific advocacy.
The Pressure Point report recently released by Human Rights Watch (HRW) acknowledges the OTP’s thorny task of bolstering national capacity to combat impunity for serious crimes. The ICC Prosecutor must strike a balance between “opening a space to national authorities while proceeding and being seen to proceed with a commitment to act” if authorities fail to deliver.
At risk of misrepresenting the report’s conclusion, I would analogize it as follows: to be effective, the OTP must maintain the “Sword of Damocles” over domestic authorities while simultaneously stimulating them through the strategic insertion of thin acupuncture needles within complex local structures.
Positive Complementarity and Colombia
The HRW report begins with a list of practices that it later transforms into policy proposals. At first glance, the recommendations seem constructive and reasonable. Indeed, international justice would benefit from transparent international institutions that prioritize deep alliances among stakeholders and act strategically when deploying their resources.
However, when it came to the Colombian case, I found myself disagreeing with the legal and policy analysis of the report on various accounts. This difference of opinion comes as no surprise. The report assesses difficult, almost impossible, decisions made during times characterized by unrest and uncertainty: a thorny peace process was in the making. There is, therefore, much room for second-guessing as to how local authorities and the OTP have handled prosecutorial decisions in the midst of this transition.
My goal here is not to promote my analysis over that contained in HRW’s recent report. Instead, I want to highlight additional factors that I believe deserved more attention within the report and, if taken into consideration, would likely lead to different policy conclusions. By raising my contrasting assessment of the Colombian case, I suggest that the report’s recommendations provide important, but incomplete guidance “for strengthening the OTP’s complementary specific approaches to increase impact in the future.”
I agree with much of the report’s core analysis. First, the OTP’s approach to the problem of complementarity has been erratic at times. During the tenure of the ICC’s first chief Prosecutor, Luis Moreno-Ocampo, there was little indication that any coherent policy was in place. It was practically impossible to know what the goals of the intervention in Colombia were, which made it very difficult to assess whether or not his actions matched the OTP’s intentions. Incidentally, part of the domestic human rights community in Colombia similarly criticized Fatou Bensouda’s early approach as chief Prosecutor as being no different from her predecessor.
Second, it is undeniable that the OTP has put significant effort into developing a more coherent policy toward complementarity. Through general policy documents, annual reports on countries under “preliminary examination,” and public statements, the OTP now provides a clearer picture of how it conceives its intervention and its approach to each ongoing examination and investigation. One can disagree with the method, but it is fair to say that we know there is one.
Third, much uncertainty remains. In the Colombian context, for instance, nobody knows what it would take for the preliminary examination to move forward or to be terminated. There have been positive domestic outcomes. The proceedings before the Special Jurisdiction for Peace have begun to take effect and senior military officials have acknowledged responsibility for the murders and misrepresentations known as “False Positives.” But there has also been backlash. To name but one, the Constitution was amended to include a definition of “command responsibility” that is inconsistent with international law. Continue reading