The International Criminal Court (ICC) is a court of last resort.

Under the principle of “complementarity,” the ICC can only take up cases where national authorities—which have the primary responsibility under international law to ensure accountability for atrocity crimes—do not.

In the long-term, bolstering national proceedings is crucial in the fight against impunity for the most serious crimes, and is fundamental to hopes for the ICC’s broad impact. Where states have an interest in avoiding the ICC’s intervention, they can do so by conducting genuine national proceedings. As a result, the Office of the Prosecutor (OTP) can have significant leverage with national authorities in countries where it is considering whether to open an investigation in what are known as “preliminary examinations.”

The OTP has recognized this opportunity. In policy and in practice, the OTP is committed, where feasible, to encouraging national proceedings into crimes falling within the ICC’s jurisdiction in preliminary examinations. This makes the OTP potentially an important actor in what has come to be known as “positive complementarity”—the range of efforts by international partners, international organizations, and civil society groups to assist national authorities to carry out effective prosecutions of international crimes. These efforts include legislative assistance, capacity building, and advocacy and political dialogue to counter obstruction.

While early references to positive complementarity were primarily to the role of the court (see Appendix 1), the term has since evolved, particularly leading up to and after the 2010 ICC review conference in Kampala, Uganda. Momentum has been difficult to sustain since Kampala, but the term has garnered increased recognition and has come to encompass initiatives by a range of actors to encourage national prosecutions of international crimes.

These efforts are needed because domestic prosecutions of international crimes typically face several obstacles. Political will of national authorities to support independent investigations is essential, but is often absent or quixotic given that these prosecutions likely touch on powerful domestic and even international interests that oppose accountability. Prosecutions of mass atrocity crimes also require specialized expertise and support, including witness protection. Countries are often ill-equipped to meet these challenges.

While the OTP’s commitment to positive complementarity in preliminary examinations as part of this broader landscape holds significant potential to meet victims’ rights to justice for human rights crimes and to amplify the impact of the ICC on national justice efforts, it faces significant and steep challenges in seeking to translate its policy commitment into successful practice.

This report explores the extent to which it is realistic for the OTP to be able to deliver on this commitment, and asks whether domestic challenges are too great for the ICC’s commitment to positive complementarity to surmount.

Report by the Human Rights Watch