The new policy of the International Criminal Court (ICC)’s Office of the Prosecutor (OTP or the Office) on complementarity and cooperation outlines a two-track approach to the OTP’s application of the complementarity principle, under which the ICC is a court of last resort that steps in only when national authorities are unwilling or unable to do so. On one track, the Office seeks to actively support domestic justice efforts by strengthening its partnership with national authorities, an area of work long-termed “positive complementarity.” On the other track, it remains vigilant and ready to step in where necessary to investigate and prosecute Rome Statute crimes, even while continuing to support complementary domestic justice efforts.
The policy presents these tracks as mutually reinforcing and parallel. Indeed, since the establishment of the ICC, successive prosecutors have paired investigations in situation countries with a commitment to support national authorities, at least on paper. As noted in the policy, a 2003 paper on positive complementarity submitted by experts to the OTP termed these two tracks “partnership” and “vigilance,” emphasizing the need for the Office to invest in both to ensure the effective implementation of complementarity.
What’s notable here is that the overwhelming focus of the new policy is on partnership. In his preface “A Renewed Partnership for Accountability,” the Prosecutor emphasizes that: “[a]bove all, this new policy and the innovative approach it outlines is founded on the principle of partnership” (page 6). While being clear that “if States do not step up, the Office will not hesitate to fulfill its mandate” (para. 4), the policy lacks detail on how it intends to exercise this vigilance.
This is not just a rhetorical point. It raises real concerns that the implementation of this policy could result in an excessive focus on support for and deference to some national authorities, leaving victims without credible avenues for justice. The new emphasis on partnership has coincided with the Prosecutor’s decision to close two preliminary examinations (Colombia and Guinea) in deference to national efforts, and complete investigative activities in four situations since 2021 (Central African Republic, Georgia, Kenya, and Uganda).The likelihood of credible accountability through domestic proceedings in some of these situations is uncertain.
This highlights the need for the Office to carefully walk the line between the two tracks when implementing this policy and to use its unique leverage to ensure that justice is effectively delivered, at the ICC and in domestic courts.
The Office of the Prosecutor as a Catalyst for Political Will
While recognizing a role for the OTP in catalyzing genuine domestic proceedings (para. 4), the policy never deals with it directly. To be sure, this role can be built, in part, on partnership. The Office’s support for and cooperation with national authorities can help to hold these authorities to account for their commitments on justice, whether the ICC investigates or not. But support and cooperation alone are not always enough. They are most likely to work when national authorities have at least a measure of willingness to support credible domestic justice.
Unsurprisingly, the lack of political will is often one of the main obstacles to advancement of domestic proceedings.
Observations from Human Rights Watch (where one of us works) on the interaction between the OTP and national authorities during its preliminary examinations in Guinea, Colombia, Georgia, and the United Kingdom (i.e. when the Office was considering whether to open an investigation in these situations) indicated that its leverage with national authorities to move them toward support for genuine proceedings appeared to depend on the level of concern these authorities had regarding the prospect of an ICC investigation, combined with the Office’s posture and engagement. Human Rights Watch’s research shows that there is a real opening for the OTP through vigilance to increase its effectiveness as a catalyst for justice.
The new policy refers to the OTP’s practice of inviting timely responses from national authorities to the Office’s requests for information in the context of its admissibility assessment (para. 155). This is one way in which the OTP can exert pressure on national authorities to show that they are genuinely investigating and prosecuting crimes under the jurisdiction of the Court.
Other ways for the Office to catalyze progress at the domestic level include: increasing transparency, including by identifying benchmarks for national authorities to demonstrate they are investigating and prosecuting the crimes and to make them public; and investing in strategic alliances, including with civil society. We explore these below and assess to what extent they are addressed in the policy.
1. Increasing Transparency
From 2011 to 2020, the OTP issued annual reports on its preliminary examinations. Over time, these reports became important points of reference for various stakeholders. They included factual and legal assessments that could be used by civil society organizations to support their advocacy to advance progress in justice at the domestic level, for example through the legal characterization of certain acts as crimes under the jurisdiction of the Court.
These reports put pressure on national authorities to meet their obligations to investigate and prosecute serious crimes, including by publicly laying out the OTP’s assessment of national proceedings and what countries should do to avoid ICC intervention. At times, these reports signaled key benchmarks or obstacles to advancing genuine domestic proceedings, providing a map not only to national authorities as to necessary steps, but to partners seeking to directly engage those authorities.
They also provided a singular measure of recognition to victims that the crimes committed against them were under consideration. And they included information on ICC processes – and the potential for genuine national proceedings – that better equipped them to exercise their rights before the ICC as well as at the domestic level.
These reports were discontinued and substituted in 2022 and 2023 with annual reports that offer an overview of all the OTP’s activities, but lacked the level of detail generally provided in the previous reporting on preliminary examinations.
During consultations on the new policy, 42 civil society groups, including our two organizations, asked the OTP to commit to regular, detailed, situation-specific public reporting in any context in which it is actively supporting national proceedings, in order to recoup the benefits for national justice of the prior reporting practice.
The OTP seems to have been partially responsive to this input, and the final version of the policy includes several references to the Office’s intention to enhance its reporting on complementarity and cooperation activities (paras. 22, 36, 84, and 177). However, the policy falls short of committing to the type of detailed, situation-specific public reporting civil society groups have asked for.
2. Investing in a Genuine Strategic Alliance with Civil Society
Civil society organizations have been strategic allies of the ICC since its inception. They often bridge the gap between the Court and victims of Rome Statute crimes, amplifying victims’ voices and facilitating their access to justice. This includes documenting crimes under the jurisdiction of the Court, informing victims and affected communities about the Court and its proceedings – often filling the gaps of the Court’s capacity to carry out its own outreach – and facilitating their interaction and engagement with the Court.
They can also be important complementarity partners, for example, as sources of information in addition to national authorities for the OTP’s admissibility assessment, and they can support and amplify the Office’s efforts to exert pressure for progress in domestic proceedings. So, it is essential to ensure that civil society organizations can play an active role in the implementation of this policy.
This is critical as the OTP cannot be expected to single-handedly transform the national accountability landscape and play its vigilance role alone. Particularly when powerful political interests are working against justice, the Office needs the backing of other partners, such as civil society, to catalyze political will.
The policy appears to recognize the importance of this alliance, and it includes a section dedicated specifically to “Strengthening Engagement with Civil Society Organisations” under the pillar “Bringing Justice Closer to Communities.” During consultations around the policy, civil society organizations actively engaged with the OTP to further strengthen this section, which now includes additional language to acknowledge the importance of engagement with victims and civil society organizations for the effective implementation of the policy (paras. 82-83); to reflect the mutually beneficial relationship between the OTP and civil society (para. 83); and to invite exchange on how to deepen engagement and address the multi-layered challenges that may affect civil society’s interaction with the Office (para. 85).
Translating this commitment into practice, however, will take more work on the part of the OTP. Over the last three years, civil society organizations have raised serious concerns about a decline in transparency from and meaningful dialogue with the Office, which led several members of the International Federation for Human Rights (FIDH) (where one of us works) to say that they feel reduced to mere spectators, rather than justice partners. This has included a lack of meaningful two-way communication around the Prosecutor and the Office’s visits to situation countries and their engagement with national authorities, lack of engagement with civil society during these visits, and lack of publicity of the Memoranda of Understanding and agreements between the OTP and national authorities.
One way to course correct is for the OTP to include civil society in the newly developed “Cooperation and Complementarity Forum” (paras. 38-45), as FIDH and other organizations have recommended. That forum is intended to facilitate technical assistance between the Office and national authorities from both States Parties and non-States Parties. While the policy does not explicitly include civil society organizations – many of whom are deeply engaged in efforts to support national authorities – in the forum yet, the Office should consider how to do that as it operationalizes the forum.
The policy includes a commitment to establish a separate “enhanced structural dialogue” between the OTP and civil society (para. 84), which still requires clarity and a solid action plan.
The Need for Consistency
The policy also does not lay out clear criteria regarding the OTP’s decisions to prioritize support to national authorities in certain situations and not others. This lack of transparency, coupled with perceived inconsistencies in applying the complementarity principle across the OTP’s docket, raises concerns about double standards and fairness despite the Office’s promise that it “will always endeavor to act consistently across all situations by seeking out and inviting opportunities for engagement at every turn” (para. 8).
For example, it is significant that the policy was launched from Colombia and the Central African Republic, as well as during the Office’s meeting in Tunisia with civil society groups working on the Libya situation. These are situations in which the OTP has concluded a preliminary examination and completed (or announced it is planning to complete) its investigative activities, and where it is investing heavily in supporting national authorities and actively publicizing its efforts in this regard. At the same time, the OTP has not provided any information of complementarity efforts it is undertaking in other situations where it has made completion decisions, such as Iraq/UK and Georgia, and the de-prioritized portion of the Afghanistan investigation related to crimes allegedly committed by US and former Afghan government forces.
Similarly, the OTP has been vocal about its engagement with national authorities and complementarity efforts in some situations under ongoing investigation by the Office (for example, Ukraine and the Democratic Republic of Congo), and not others, raising questions about the criteria applied to such decisions.
The policy states that “[g]iven its dynamic and interactive nature, [it] does not seek to set out a list of factors to guide when and where it might be implemented” (para. 120). However, clarity on the criteria guiding the OTP’s decisions, coupled with a practice of public reporting tracking a consistent application of the draft policy can protect the Office from accusations of bias and show that it is operating free from political or other external interference, thereby upholding the Court’s legitimacy.
The Devil Is in the Implementation
The section on the implementation of the policy is very limited and notes that “[f]ocus instead is given to developing practice – in order to illustrate the multiple ways and conditions under which the approaches set out in this policy can be given practical expression. As experience and learning build over time, it is hoped that these and other developments can in turn stimulate fresh thinking on future avenues for practice” (para. 120).
While a certain degree of flexibility is necessary, to ensure that the policy does not remain theoretical, and to address some of the ongoing concerns highlighted above, the OTP should:
- Design and publish a detailed implementation plan for the policy that outlines the Office’s commitments, potential benchmarks, associated indicators, and a timeline for evaluation;
- Provide additional information on how the Office is going to ensure that it strikes the right balance between the partnership and vigilance tracks, and catalyze progress at the domestic level to ensure that justice is genuinely delivered;
- Commit to regular, detailed, situation-specific reporting on preliminary examinations, investigations, and any other context in which it is actively supporting national proceedings;
- Provide clarity on the criteria it uses to decide how to prioritize its support to national authorities in certain situations over others; and
- Genuinely engage with civil society organizations in a regular and systematic way, particularly those from the relevant situation countries, on the implementation of the policy.
Getting the balance right between partnership and vigilance is far from easy, but it is crucial if the OTP is to fulfill the promise of a Rome Statute system that is able to deliver credible justice for victims of serious crimes, either before the ICC or domestic courts.
