Complementarity, Catalysts, Compliance Symposium: The Complementarity Test: Reflections on Plain Terms, Expectations and ICL Discourse

[Rod Rastan serves as Legal Advisor in the Office of the Prosecutor at the International Criminal Court, where he deals with international law issues, in particular in relation to jurisdiction, admissibility and judicial assistance. The views expressed herein are solely the author’s and do not necessarily reflect those of the OTP or the ICC. ]

It is fair to say that the International Criminal Court’s complementarity jurisprudence has provoked heated debate. Even if not uniform, there is a widely held opinion that the ‘same person/same conduct’ test may simply be too narrow: that it has undermined the idea of complementarity as a catalyst and may have in fact discouraged states from acting (see e.g. here, here and here). But there is one main difficulty with this line of argument, which is that it appears to overlook what the Rome Statute actually says. The pervasiveness of this critique, supported by a significant body of scholarship, invites reflection on our expectations and on the nature of ICL discourse. Why is it that whereas with all other aspects of the Statute we demand faithful adherence to the basic rules of treaty interpretation, when it comes to article 17 of the Statute we seem to want something different?

The struggle to find an answer to this riddle underlies Christian De Vos’s review of the Court’s case law and practice. His book offers a kaleidoscopic review of the many implications of the ICC’s jurisprudence and the impact or perceptions it has generated, and the extent to which it has helped or inhibited the catalytic potential of complementarity. De Vos appears to take a more nuanced view in accepting as a premise that the ‘same person/same conduct test’ is legally correct, but he still evinces a certain reluctance or ambivalence towards its application in practice. (And here I should provide full disclosure, I also had difficulty with the Court’s first case law on complementarity when I first read it. From my own research, started during the 1996-1997 PrepComs and continuing after the Statute was adopted, I had been grounded on the idea of the ICC as a catalyst for domestic action. When the first decisions came out I instinctively felt the test too narrow – until I went into the relevant provisions and found myself explaining the test and endorsing it).

So why do we struggle so much with the Court’s complementarity case law?

Part of the answer appears in the Statute’s preambular language, which lends itself of course to a much broader reading of complementarity. Most of the Preamble is not really about the ICC, but about the crimes – their seriousness, their impact on victims and on the world, and the existing duty of States in terms of penal repression. It is only in the tenth paragraph that the ICC is even mentioned – as a complement to this existing accountability framework. The Preamble tells us that that the ICC is not set up to displace the system, but to add to it, to supplement it, to complement it. So important is this theme that it appears in the very first substantive provision of the Statute.

So we become used to the idea, at the outset, that the primary goal of the Statute is to galvanise States to enforce accountability norms domestically and that the existence of the ICC is to buttress that aspiration (not detract from it).  Inspired by this macro-level vision, we may come to think that any and all efforts to address accountability domestically should be given priority to the ICC: indeed, we might prefer that the Court step down whenever and wherever States act, irrespective of the comparatively ‘micro-scale’ issue of the sameness of cases.

But the problem of course comes when we read on and come to article 17, which sets out the actual content of the complementarity test. There we see that admissibility means something much more specific. It refers to the particular ‘case’ before the ICC, and whether that case is being (or has been) investigated and/or prosecuted at the national level. It links admissibility to article 20(3) on ne bis in idem, which requires the Court to examine whether the ‘person’ concerned has been previously tried for the ‘same conduct’.

And then there are other provisions of the Statute that give effect to admissibility. One of these is article 90, which deals with competing requests for extradition. The provision might seem tangential, but its operation is directly linked to article 17. It is also the only other place in the Statute (apart from article 20(3)) where the ‘same person/same conduct’ test is expressly spelled out.

The first thing article 90(1) asks is whether the ICC surrender request received by State Party A and the competing extradition request made to it from State Party B concern “the same person for the same conduct”. If it is, the next step, under article 90(2), is to check whether the Court has entered an admissibility ruling on that case taking into account the investigation or prosecution in State Party B. The reason is to ensure that the Court’s admissibility decisions are not undermined. For example, if State Party A extradited a person to State Party B despite the Court having previously found the case to be admissible notwithstanding State Party B’s claim, article 17 would be subverted – i.e. States Parties A and B would effectively be setting aside the Court’s admissibility ruling.

The sceptical reader might think this all a bit convoluted. Perhaps the ‘same person/same conduct’ test in article 90 is only one among other scenarios; perhaps the scope of article 17 is not exhaustively captured by article 90(1). Perhaps, but then one runs into more provisions that expressly distinguish the ‘same person/same conduct’ scenario from other scenarios. Article 90(7), for instance, deals with a situation where the competing extradition request concerns the same person for different conduct (“the same person for conduct other than that which constitutes the crime for which the Court seeks the person’s surrender”). Here, in contrast to article 90(2), there is no requirement to check on admissibility. This seems logical if we accept the rationale that admissibility does not arise when two cases are not the same. And then there are other provisions of Part 9 which envisage the ICC and States concurrently investigating different cases, whether the same person for different conduct or other persons altogether. None of these provisions envisage admissibility rulings: instead they foresee cooperation so that both cases can proceed, either concurrently (art. 94, 93(10)), or in sequence (art. 89(4), rule 183). By contrast, where admissibility does arise under Part 9, this is expressly set out (art. 90, 95). In this way, the Statute distinguishes between cases that are different from each other, where both can proceed in turn (to be resolved via cooperation), and cases that are the same, where only one can progress to the exclusion of the other (to be resolved via admissibility).

The aim of this short sketch is not to engage in a recitation of the law, but to make the simple point that the ‘same person/same conduct’ test is not an invention that has been read into the law – it is the law itself. And even if the Appeals Chamber has read some flexibility into the test by saying that the same conduct component will be satisfied by cases that concern “substantially the same conduct”, this arguably operates along parameters familiar to domestic and regional cases on ne bis in idem/double jeopardy and extradition (for a fuller discussion see here).

The larger point of this entry is to reflect on why there seems to be so much difficulty accepting the law as drafted. Why the struggle? Why is the test seen as too narrow and the judges invited to depart from ordinary rules of statutory interpretation?

De Vos’s book epitomises this struggle: he sees both sides of the coin and finds value in pluralist debate, but ultimately fails to reconcile the two. He writes that the ‘same person/same conduct test’ “while defensible as a matter of statutory interpretation” (p. 81) and “consistent with the technically worded provision of article 17” (p. 280), nonetheless leads to undesirable outcomes for which the Court and its case law are apportioned their share of responsibility. He refers to the “ICC’s reluctance thus far to develop a more flexible approach to its admissibility jurisprudence… ” (p. 102). When the Court distinguishes article 17 as a technical legal test from the wider goals of the Preamble, De Vos critiques the ICC’s approach as “symptomatic of legalism” in that it “seeks to ‘isolate law … from the social context in which it exists’” (citing Judith Shklar), even while he accepts its technical correctness. At the same time, the chilling effects referred in the book to do not always seem to arise from the Statute itself, or its interpretation, but rather from perceptions it has generated at the national level, which appears to lend itself to critiques of state actors as much as the ICC (pp. 83, 102).

De Vos’s effort to square the circle invites some pause for reflection on the nature of our discourses. Sometimes we expect all things, or are surprised when our expectations or presuppositions are not reflected in practice, or we may wish for other policy objectives to be given effect. We wish for ICC admissibility rulings that concretely catalyse domestic actors to enforce their primary responsibility – a Court whose decisions directly mobilises States to bring forward cases nationally. By contrast, if we see the ICC preoccupied with its own procedures and narrowly determining whether the particular case before it should be inadmissible as a result of the same person having already been investigated or prosecuted for the same (or substantially the same) conduct – we think that the Court is being ICC-centric, that it has lost sight of the Preamble’s system-wide effects. But isn’t this asking the right questions in the wrong places? Should we expect ICC judgments to depart from the assigned remit of article 17 in resolving case-specific forum determination issues?

In the book’s concluding section, De Vos offers the sober reflection that perhaps for all the broader policy questions that complementarity gives rise to, “the desire to catalyse domestic accountability broadly through the legal frame of case-specific admissibility proceedings may ultimately be irreconcilable. It asks Article 17 to solve a problem for which it was not built.” (p. 283).  He suggests a more fruitful area of practice to turn to in order to give effect to the Court’s catalysing potential would be to make greater use of the Court’s cooperation and dialogue provisions, to rely on the comparative wider scope for admissibility assessments before concrete cases have been brought before the Court, and by building on policy criteria such as those defined by the OTP’s case selection and prioritisation policy. As De Vos observes, “although Article 17 applications have been the crucible through which states have sought to accommodate their interactions with the ICC, they are a blunt instrument: the space they create for dialogue between states and organs of the court is exceedingly limited. Greater attention to the Statute’s cooperation and consultation regimes is thus needed.” (p. 284).

I would tend to agree. As I have argued elsewhere, for all the important debate, much of the discourse around the Court has located the question ‘which cases should the ICC hear?’ in the wrong place: in Article 17, instead of areas of law and practice where there is much broader scope for considering the strategic policy implications of prosecutorial action and for promoting dialogue and exchange with national stakeholders. For example, focus could be directed to prosecutorial charging decisions based on, inter alia, long stated policy commitments to encourage genuine national proceedings and to avoid competition with states. This might examine case selection and prioritization criteria which state inter alia that, as a matter of policy, the OTP will consider not prioritizing a case that otherwise meets the selection criteria where “a person, or members of the same group, have already been subject to investigation or prosecution either by the Office or by a State for another serious crime”. In other words, although admissibility challenges under article 17 cannot accommodate alternatives to the ‘same person/same conduct’ test, broader considerations forming part of charging decisions and prosecutorial policy can. This might not seem as attractive a prism to examine ICC practice as the Court’s admissibility provisions given that such decisions are not amenable to judicial review. Yet, the Statute is not served by strained interpretations of article 17 to achieve this goal. But by misdirecting the critique, the discourse on complementarity has been stretched to take on broader strategic considerations that article 17 cannot sustain.

De Vos’s book is not of course limited to the ‘same person/same conduct’ test, and considers a host of related issues, including those of process and potential scope for interpretation within the existing framework, but it offers a compelling guide through the twists and turns of complementarity, it effects, and perceptions in three situation countries, its focus and its blind spots, and in so doing, invites reflection on the very purpose and goals of complementarity.