Kevin Jon Heller Responds to Professors Darryl Robinson and Carsten Stahn

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

My thanks to Darryl Robinson and Carsten Stahn for their kind words about my Article. They are leading scholars in the area of complementarity, so I appreciate them taking the time to respond. Both have written longer, more formal responses to the Article for the Harvard International Law Journal, which interested readers should check out when they become available. In this post, I will limit myself to responding to their comments for Opinio Juris.

Robinson

Darryl’s response focuses on my belief that the ICC should reject the “same conduct” requirement, which requires the Court to admit a case that is not based on precisely the same conduct as the international proceeding. He believes that, despite the inflexibility of the same-conduct requirement, “[i]t is simply not true that the Court would be powerless to refuse to admit the case or required to preempt the national proceedings.” First, Articles 89(4) and 94(1) of the Rome Statute “provide for consultation between the state and the Court where the Court’s request (for assistance in general or for surrender specifically) would interfere with the state’s investigation or prosecution of a different case.” Second, Article 53(2)(c) permits the Court to decide that “it is no longer in the interests of justice to invest resources prosecuting an aged defendant who has already been punished for different but related crimes.”

I agree with Darryl that Articles 89(4) and 94(1) are important, and I discuss them in my Article (as he notes). But I am not convinced that they are an adequate substitute for eliminating the “same conduct” requirement. Let’s begin with Article 89(4):

If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

It is true that Article 89(4) permits the Court to agree to defer surrender of a suspect. But it does not require the Court to defer surrender – and indeed, it seems to establish a presumption against such deferral, because the consultation process kicks in only after the state has made “its decision to grant the request.” More simply put: the state has to agree to surrender the suspect, even if he is already serving a sentence after a successful national prosecution, before it can try to convince the Court to defer the international proceeding. The Court has all the power in that situation; the state has none – in marked contrast with the complementarity regime, which entitles states to prosecute suspects themselves, subject only to the formal requirements of Article 17. Perhaps the Court will prove remarkably willing to defer surrender in the face of a national proceeding; perhaps not. Personally, given the nearly uniform insistence among scholars and activists that it is essential to prosecute international crimes as international crimes, my guess is that it will be the latter. Either way, though, I think that Article 89(4) does indeed leave – to quote Darryl – “too much discretion to the Court.” Discretion is no substitute for juridification.

I am also not convinced that Article 94(1) makes eliminating the same-conduct requirement unnecessary. Here is what the provision says:

If the immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates, the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than is necessary to complete the relevant investigation or prosecution in the requested State.

There are two problems with Article 94(1). To begin with, like Article 89(4), it is essentially discretionary: the state needs the Court’s agreement to defer surrender. Even more problematic, though, is the second sentence: surrender can only be deferred until “the relevant investigation or prosecution in the requested State” is complete. Article 89(4) thus does not permit a state to defer surrender until after a convicted defendant serves his sentence; even if the defendant receives a sentence far longer than the maximum sentence he could receive in an ICC prosecution, the state must still hand him over as soon as judgment is rendered. So Article 89(4) actually permits the worst of all possible worlds: a situation in which a state defers surrendering a suspect, successfully prosecutes him leading to a lengthy sentence, and then has to hand him over to the ICC for a second prosecution for different conduct that may well result in a lesser sentence. If there is any justification for that waste of judicial resources (both domestically and internationally), I fail to see it.

Finally, I have to take (gentle) issue with Darryl’s interpretation of Article 53(2)(c). He says that the Article permits “the ICC” to decline to prosecute a case on the ground that the prosecution would not be “in the interests of justice.” But that is not entirely accurate; in fact, Article 53(2)(c) permits the Prosecutor to decline to prosecute a case on that ground. The Pre-Trial Chamber does not have that power; although it can order the Prosecutor to prosecute a case despite his or her belief that it is not in the interests of justice, it cannot order the Prosecutor not to prosecute a case that he or she believes is just. That asymmetry follows ineluctably from Article 53(3)(b), which provides the following (emphasis mine):

In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

Only the Prosecutor, then, can make the decision to defer, in the “interests of justice,” to a national prosecution that is based on different conduct than the OTP’s prosecution. That is certainly better than nothing – but it is no substitute for eliminating the same-conduct requirement, determining admissibility solely on the basis of the sentence that the suspect would receive (or did receive) in a national prosecution.

Stahn

Carsten offers a number of thoughtful criticisms of the Article, far more than I can reply to here. So let me single out what I think are the most important. First, he describes as “misleading” my idea that – in his words – “the complementarity regime ‘pressures’ states to prosecute international crimes under an international label, pointing out that “[t]he Statute does not per se oblige States to investigate and prosecute” international crimes. As I hope I made clear in the Article, I completely agree with Carsten’s description of the Rome Statute itself. My problem is with how scholars and human-rights organizations have used the Rome Statute – in particular the principle of complementarity – to pressure states into incorporating international crimes into their domestic legislation. I do not think that the text of Article 17 supports such efforts, but the efforts are there nonetheless. So one of the basic goals of my Article is to demonstrate that it may well be counterproductive to insist that states prosecute international crimes as international crimes, given their legal and evidentiary complexity.

Second, although Carsten seems to concede that international crimes are more difficult to prosecute domestically than ordinary crimes, he points out that they have their advantages, such as to offer ‘”a broader basis for jurisdiction (i.e. prosecution of extraterritorial acts), curtail the applicability of statutes of limitation or extend the prospects for cooperation and judicial assistance.” This is a strong criticism, one that I have to concede – at least to a point. To begin with, I am unreservedly in favor of eliminating statute of limitations for crimes and promoting interstate cooperation. But I don’t think states have to incorporate international crimes in order to accomplish those goals. Moreover, with regard to jurisdiction, I can’t help but wonder whether Carsten and I aren’t thinking about very different kinds of states. I’m concerned about those that find it difficult to prosecute ordinary crimes, much less international ones. Are such states really going to be predisposed to prosecuting acts committed extraterritorially, particularly via universal jurisdiction? To be sure, they may be interested in prosecuting acts committed by their nationals or against their nationals abroad. But they hardly need to incorporate international crimes in order to exercise active nationality or passive personality over criminal acts.

Third, Carsten says that it would be “partially counter-productive” to reduce the incentives for states to prosecute international crimes, because, “[p]aradoxically, in existing practice, ‘ordinary crime’ prosecutions (e.g. war crimes) are often criticized since they result in lower sentences.” Here I would simply refer readers to my Article, which documents – I hope amply – that, in fact, the opposite is true: international crimes are often, perhaps even normally, punished less severely than ordinary crimes.

Fourth, Carsten says that situations in which the ICC needlessly takes over a domestic proceeding based on the same or similar conduct can be avoided “through prosecutorial selection practice and appropriate charging strategy.” My response to this argument is the same as my response to Darryl’s similar criticism: discretion is not a substitute for juridification. If there is no normative or pragmatic rationale for the ICC to pre-empt a domestic prosecution – which is what I argue with regard to domestic prosecutions that result in an adequate sentence – I fail to see why we should still permit the Prosecutor to use his or her discretion unwisely. The case should simply be inadmissible, full stop.

Fifth, Carsten argues against my belief that a sentence-based complementarity heuristic is necessary because the traditional heuristic cannot determine when a mode of participation is “inadequate” or the availability of defences is “overprotective.” In his view, those problems do not require a sentence-based heuristic, because domestic authorities should be given “some flexibility” with regard to the former and the Court could judge the latter through the traditional “purpose of shielding” criterion. But how should the Court make those determinations? When is flexibility too much flexibility? Short of an acquittal, when does the availability of a particular defence indicate a desire to shield a perpetrator from responsibility? Defenders of the traditional complementarity heuristic have no answers to those questions; their view seems to be that the Court will simply know impunity when it sees it. I’m not convinced – which is why I believe a more objective criterion of genuineness, length of sentence, would be better.

Sixth, Carsten claims that my sentence-based heuristic “produces some side-effects that are not necessarily desirable,” because it “[i]t pays little attention to the interests of defendants.” (That hurts!) In particular, he says that “it would implicitly encourage a ‘race to top’ in terms of penalties, both at the ICC and at the domestic level,” which is not necessarily in the spirit of the Statute. He also points out that the heuristic “would ultimately treat states who reject the ‘death’ penalty less ‘favorably’ in terms of deference than States who apply it,” which is “is not appealing from a ‘policy’ perspective.” The first criticism is legitimate, but I think it is overstated. Given the remarkable sentencing lenience of every modern international tribunal other than the ICTR (as I discuss in the article) and the relative severity of domestic penalties, a state would not have to race very far to satisfy my sentence-based heuristic. I think the second criticism is overstated, as well: under my heuristic, a life sentence would always satisfy complementarity, because that is the maximum penalty the ICC can impose. So if a state nevertheless chose to pursue the death penalty in a particular case, it would be difficult to argue that its decision was in any way driven by the principle of complementarity.

Seventh, and finally, Carsten suggests that a sentence-based heuristic would be difficult to apply in practice, because predicting a domestic sentence “involves a great degree of uncertainty and certain risks,” such as conditioning the successful application of the heuristic on the ICC’s ability to understand national sentencing practices. I think this is a very valid point, one that I have to think more about. But I do have two responses. To begin with, that problem – as Carsten acknowledges – only exists when a complementarity challenge is brought before the conclusion of a domestic prosecution; after the prosecution, we know exactly what sentence (if any) the defendant received. So here is the solution: unless it is patently obvious that the national prosecution is a sham (a statute of limitations, immunity, charges like sheep-stealing, etc.), the Court should let the domestic prosecution run its course. After all, as I pointed out with regard to Darryl’s response, Article 94(1) specifically permits the Court to do precisely that. (Although the obligation to defer should be made mandatory.) Moreover, although there are clearly practical difficulties in applying the sentence-based heuristic, I am not convinced that they are more significant than the difficulties created by the traditional heuristic. My heuristic at least gives some relatively objective content to the concept of a “genuine” investigation or prosecution; the traditional heuristic provides none at all, save for the extreme situations specifically enumerated in Article 17.

Is my solution perfect? Absolutely not. But to paraphrase Churchill, the sentence-based heuristic is the worst complementarity heuristic – except for all the others.