April 26, 2007
Project Report Summary
The evolution of the rule of law has brought about the establishment of an international legal system designed to strike a balance between the commitment to universal human rights and the sovereignty of the state in which those rights are applied, according to Senior Fellow Michael Johnson. This body of international humanitarian law (IHL) has developed over the course of the last century, and over the last few decades, international judicial institutions have been established and empowered to actually enforce it. The United Nations attempted the first judicial experiments in the enforcement of IHL with its temporary ad hoc courts: the International Criminal Tribunals for the former Yugoslavia and Rwanda. The reasonable success of these first attempts resulted in the establishment of the permanent International Criminal Court (ICC).
The relationship these courts have with the states in which massive crimes take place requires the further elaboration of the international legal system. The term "complementarity" is currently utilized to describe that relationship, but only in respect to whether the ICC or a national government will assume primary responsibility for the enforcement of international law. The current definition of complementarity, as set out in the Rome Statute establishing the ICC, limits the ICC’s discretion, and specifically the discretion of its prosecutor, by recognizing that it is the right of each state to investigate and prosecute those who violate the law within that state’s boundaries. In the event that a state fails to or is not capable of conducting an appropriate judicial response to massive crimes, the ICC acts within the limits of its own resources and subject-matter authority.
Johnson argued that this "either/or" framework—in other words, ‘either’ the tribunals ‘or’ the states’ judicial systems must handle grave human rights violations—indicates that complementarity, as it is presently defined, does not work effectively to provide the necessary judicial response in post-conflict states. Nor does it produce reconciliation or end impunity. Similarly, when acting alone, the ICC cannot accomplish anything more significant than holding a few powerful people criminally responsible for what are typically widespread abuses. That is simply because the target of the ICC is the leadership, or the ‘head,’ of what is usually a large and complex body of perpetrators. The ICC acting alone is capable of removing only the head of what is a much more durable and troublesome ‘beast.’ That beast, if not also addressed along with its leadership, will continue to undermine peace and stability and prevent reconciliation.
Johnson pointed out that the Rome Statute’s definition of complementarity does, in fact, address the need to deal with the "beast" by recognizing the absolute necessity of providing an effective judicial response to grave abuses of human rights and dignity. This philosophy of complementarity is the key to how the ICC can integrate its work into the international legal system. National systems that are effectively prosecuting international crimes can improve the international legal system as a whole. This enables the ICC to seriously and efficiently adjudicate the cases it does accept and, thereby serve its proper purpose of ensuring that the most serious international offences are tried fairly. Thus, the principle of complementarity must be applied in a two-step process according to Johnson: 1) determining whether the ICC has jurisdiction, and if so, 2) figuring out what else would be required to restore the capacity of the national justice sector to serve as a partner with the ICC to address all the consequences of widespread and systematic human rights abuses.
By expanding the principle of complementarity, Johnson claimed that the ICC will have the credibility to direct the development of international standards and IHL jurisprudence as these critical instruments of the international justice system evolve. Furthermore, such a policy does not waste the resources of the international community—resources that could be used for sustainable development of the legal sector in the national system. Under the principle of subsidiarity, justice should be administered at the lowest possible level, and thus closest to the people affected by that justice. Therefore, a broader mechanism for balancing the interests of justice and the interests of sovereignty must be developed to meet the objectives of lasting peace and reconciliation after armed conflict.
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