(Read the full article here or download it below) - By Louise Olivier, OSISA Law Programme Manager - In international criminal justice discourse the concept of complementarity has emerged as one of its most controversial. Complementarity means that a national jurisdiction should try international crimes and only if the national justice system is unwilling or unable to hear such trials will the International Criminal Court (ICC) exercise its jurisdiction. One would expect such a fundamental concept of international justice to be adequately articulated in the legislation that established the ICC. Yet the term ‘complementarity’ does not appear anywhere in the Rome Statute. However, the Preamble does refer to the ICC being ‘complementary’ to national systems.
The legal basis for complementarity is in Article 17 of the Rome Statute, which covers issues of admissibility. It states that ‘...the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute’.
The justification for complementarity is the idea that ‘the ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality are unwilling or unable to genuinely carry out proceedings’. Article 17 also stipulates what constitutes ‘unwilling’ and ‘unable’. ‘Unwilling’ is when a State acts to shield a person from liability or acts in a way that ‘is inconsistent with an intent to bring the person concerned to justice’ either by failing to conduct proceedings ‘independently or impartially’, or through an ‘unjustified delay’ in proceedings. A State is ‘unable’ to investigate and prosecute when ‘due to a total or substantial collapse or unavailability of its national judicial system…it is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings’.
This notion of positive complementarity is recognised and supported by the Court and over the years this has been articulated by the Office of the Prosecutor. In June 2003, the Prosecutor stated: “As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency...The absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.” The ICC’s expert paper that comprehensively addressed complementarity stated that the ‘complementarity regime serves as a mechanism to encourage and facilitate the compliance of States with their primary responsibility to investigate and prosecute core crimes.’
A recent example of positive complementarity occurred after the arrest of Saif-al-Islam Gaddafi, when the ICC Prosecutor Moreno Ocampo said – before travelling to Libya – that while national governments have the first right to try their own citizens for war crimes, his primary goal was to ensure a fair trial. The ICC had indicted Gaddafi for crimes against humanity but Moreno Ocampo said he could be tried in Libya as long as the trial complied with ICC standards. Ocampo made the Court’s position clear when he said, “In May , we requested an arrest warrant because Libyans could not do justice in Libya. Now, as Libyans have decided to do justice, they could do justice and we'll help them to do it – that is the system.”
A key consideration when trying to ensure that the positive complementarity principle is effectively applied is that the accused person’s due process rights are protected in any national prosecution and that the prosecuting country has the ability and capacity to hold a fair trial, which is why the ICC Prosecutor emphasised the issue of international standards in the Gaddafi matter. In response, Libya’s Justice Minister, Mohammed Al Alagy said, “We are ready to prosecute. We have adopted enough legal and judicial procedures to ensure a fair trial for him.”
This is the flipside to complementarity: whether defendants will indeed receive a fair trial based on due process in national proceedings. Kevin Jon Heller, in his article ‘The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process’, says that, “although the ICC is a model of due process, guaranteeing defendants all of the procedural protections required by international law, most national criminal-justice systems are far less even-handed – particularly those in States that have experienced atrocities serious enough to draw the Court's interest. Complementarity is thus a double-edged sword.”
While complementarity requires that domestic courts be permitted to try international crimes if they are ‘willing and able’ to do so, even States that are willing may not necessarily have the capacity to ensure that due process rights are respected. This is especially true in post-conflict societies such as present-day Libya. The current situation in Libya makes it extremely unlikely that Saif-al-Islam Gaddafi would receive a fair trial, especially in circumstances where the clamour for vengeance drowns out demands for due process protections. Using a Libyan judge would also place that judicial officer under unbearable overt or covert pressure to return a guilty verdict. Furthermore, Libya’s political and legal system is in a state of extreme flux. Before the fall of the Gaddafi regime, it could hardly have been categorised as a bastion of human rights protections. Reflecting the country’s diverse heritage, its legal system was a hybrid of civil legal regimes found in Italy and France as well as being strongly influenced by Islamic law. The secular courts were organised according to the Napoleonic code and Islamic judges applied shari’a law in the religious courts. There was no provision for judicial review. Since 1973, shari’a law has been the primary legal authority. The judiciary is perceived as being close to Gaddafi – for whom the independence of the judiciary was an anathema. There is little indication to suggest that an effective and independent new judiciary has been established or that one would be ready to try Saif-al-Islam Gaddafi in the short term. The extreme uncertainty in the country means that it is highly improbably that an adequate legal system would be in place to guarantee him his fair trial rights.
The long-awaited trial of Hissène Habré is another case in point. This ex-ruler of Chad has been charged with crimes against humanity but local, regional and international efforts to bring him to justice since 1992 have amounted to nought. Habré’s rule in the 1980s was tainted by widespread human rights violations, including allegations of torture and murder. In 1992, an official truth commission revealed that Habré’s regime committed up to 40,000 political murders. In 2005, following a decision by Belgium to try Habré domestically for crimes against humanity or request his extradition from Senegal (where he was in exile), the African Union (AU) – following a recommendation by the Committee of Eminent African Jurists – called on Senegal to prosecute Habré ‘in the name of Africa’. Initially, it appeared that Senegal would take its responsibilities seriously and its parliament passed a constitutional amendment in 2008 to enable the prosecution of Habré before a domestic court. However, the trial never began – with the Senegalese government claiming that they needed US$30 million to proceed and blaming the lack of international donor support for the delay. Despite ongoing international pressure and rulings from the ECOWAS court and the International Court of Justice (ICJ) calling on Senegal to either prosecute or extradite Habré, nothing has happened to date.
Meanwhile, prosecutions in the Democratic Republic of Congo (DRC) provide a stark contrast to the inaction of the Senegalese authorities. The DRC authorities in the eastern provinces of South and North Kivu have recently undertaken domestic prosecutions of international crimes – and are continuing to pursue additional cases. In eastern Congo, members of the security forces and numerous armed groups – as well as an alarming and increasing number of civilians – have been responsible for the highest rape rates in the world. In response to the very high levels of sexual and gender-based violence (SGBV), the DRC government passed a national law on sexual violence in 2006, which clearly defines rape and other forms of sexual and gender based violence, provides expedited judicial proceedings and greater protection for victims.
Nevertheless, impunity for perpetrators of sexual and gender-based violence remains widespread – a phenomenon well known by would-be perpetrators and the public alike. Reasons for this impunity include the lack of expertise and resources among justice sector actors to investigate, prosecute and adjudicate SGBV cases, especially those arising in remote areas outside the largest provincial cities; the emotional toll and financial costs borne by survivors who seek legal recourse; and a lack of protection for victims and witnesses, who are often reluctant to engage in formal prosecutions out of fear of reprisals by their perpetrators, many of whom are their civilian neighbours.
Despite a plethora of challenges facing the country’s legal system and judiciary, initiatives have been continuing for over two years to bring perpetrators of mass rape and murder to trial. The problem has not been unwillingness, but the perceived inability of the DRC to undertake domestic prosecutions of international crimes. To overcome this problem, the DRC authorities, with the assistance of international partners, set in motion a process of creating sufficient capacity to enable it to launch these prosecutions.
As many of the perpetrators of mass rape in eastern Congo are soldiers in the Congolese army, they are prosecuted in terms of military law before a military tribunal. In November 2002, the DRC adopted a new military code – the Military Penal Code Law 024/2602 – that includes war crimes, crimes against humanity and genocide. The wording in the Code defining crimes against humanity, genocide and war crimes is very similar to that contained in the Rome Statute. It is this Code that has been used to prosecute Congolese soldiers for crimes against human humanity, rape and murder. And despite the myriad of seemingly insurmountable challenges that faces the Congolese legal system, there has been both the willingness and the ability to conduct these prosecutions in remote areas of both South and North Kivu.
The International Bar Association (IBA) undertook an assessment of DRC’s judicial and legal system in 2009 and found that country’s justice system was largely in disarray. The study recognised that it will take many years to establish a functioning and independent judiciary that operates within a fair and transparent administration of justice. Some of the deficiencies included the shortage of resources since the court system has being chronically under-funded for decades; the non-payment of key personnel; and, poor training and support for judges. The judicial system has very limited investigative capacity, particularly in relation to the number of cases of sexual violence and the complexity of cases involving international crimes. In addition, mismanagement or corruption often characterises cases that are heard, sometimes fuelling community grievances and furthering conflict. There is no effective disciplinary organ for judges since the Conseil de la Magistrature has been non-functioning for years. Meanwhile, the independence of the judiciary is not firmly established and the executive continues to interfere with judges’ decisions. This results in a widespread lack of confidence in the administration of justice and in the judiciary. Indeed, it is estimated that only a very small percentage of disputes end up in courts, not because parties to the disputes have better options, but because they are so suspicious of the judiciary that they prefer other means, including the police, security services, the military, or traditional arbitration in rural areas. Victims of human rights abuses are generally reluctant to use judicial mechanisms to seek redress.
Faced with this complex set of challenges, a new kind of complementarity is taking shape. The mobile gender court project facilitates rape and murder trials of soldiers, militia and civilians. The courts are staffed by Congolese judges, prosecutors, defense counsel and civil party representatives. The law they apply is Congolese and the sentences are enforced in prisons in the two provinces.
On 21 February 2011, Lt Colonel Mutuare Kibibi became the most senior commander in the Congolese army to be found guilty of crimes against humanity, for ordering the mass rape of at least 49 women in the town of Fizi on New Year’s Day. Eight soldiers under his command were also convicted. The case was heard by a specially constituted mobile military court set up in the nearby town of Baraka. The court acted in terms of the provisions in that Military Code that complemented the Rome Statute. The trial offered an example of positive complementarity at its best with arrests, investigations, trial, conviction and sentencing taking place within a period of two months. Contrast this to the trial periods that occur at the ICC. Currently, the Court in The Hague has not concluded a single prosecution and even the most magnanimous of critiques of the ICC would have to conclude that the current Lubanga prosecution has been problematic and the record of the court disappointing.
The DRC mobile gender court has shown that domestic courts can effectively complement the role of the ICC in combating international crimes. In the Fizi rape trials, not only was the Congolese government willing to prosecute, it was also able to do so in a way that met fair trial standards. The courts were mindful of their responsibilities in terms of the complementarity principle and applied the law consistently and appropriately. An evaluation of the mobile gender courts has shown that sexual violence crimes, perpetrated as part of the ongoing conflict in eastern Congo, will be prosecuted. The victims do not have to wait for justice to take place in an international court, which is thousands of miles away and which they would never be able to access. The evaluation said that ‘Rounding out the resources on which the gender justice mobile courts can rely is the excellence of many experienced judges and lawyers, who have been trained in accordance with sophisticated and modern legal traditions that are a positive legacy of the otherwise discredited colonial era. And, perhaps counter-intuitively given that soldiers are the principal perpetrators of sexual violence, the military justice system has shown that it can, when sufficiently supported with resources and personnel, effectively deliver justice to those victims who are able to access its courts’.
The trials that are currently taking place in the eastern Congo are not without their challenges. It is extremely difficult to ensure that the sentences are carried out as political interference has resulted in the release of some convicted people and the prison conditions would not meet minimum standards of human rights protections. The courts also are heavily reliant upon donor funding, particularly to cover the logistical costs of operating mobile trials in remote parts of such an infrastructure-poor region. In addition, some prosecutions that should take place probably never will as there is no political will to investigate the alleged perpetrators, while victim protection and reparation is not been adequately addressed. However, the mobile trials are providing a measure of justice that complements the work of international tribunals. The overriding objective of intentional criminal justice is to ensure that the perpetrators of grave crimes are brought to justice. These courts contribute to this objective.
An observer at one of the trials in Kamituga, Hansen Kaseki said, “These mobile courts are very good. It is a matter of changing the behaviour of soldiers and police officers towards women and children and other people. They have never been tried or sentenced like this before. People like these, captains and colonels, thought they were above the law. This shows that justice is beginning to work in the Democratic Republic of Congo, and people are watching and listening.”
The lesson of the DRC is that, with the necessary political will and support, the capacity to prosecute international crimes domestically can be established – even in the most trying circumstances. The DRC experience gives real meaning to the concept of complementarity, perhaps going beyond positive complementarity to a new notion of ‘active’ complementarity, which could help combat impunity anywhere in the world.