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The Guardian - July 17, 2012

The question must not be avoided. The ICC must act on its obligations around the concept of complementarity

by Alison Cole

This international justice day marks several prominent events. Theinternational criminal court (ICC) has now completed itsĀ first decade of operations. Last month, theĀ new prosecutor commenced her nine year term. Last week, the court delivered its firstĀ sentencing judgment. At this juncture, there is much cause for retrospection to uncover lessons learned and best practices. But the big question yet to be addressed by the court is: what is the impact of these efforts, or in other words, what is the ICC's legacy?

Legacy is a concept that has been applied to previous international tribunals. Its exact definition is debated but generally it encompasses the notion that an international court ought to have a lasting impact beyond the litigation of specific atrocity cases. Beyond this generalisation, there are two contrasting visions of what legacy means.

The more conservative definition limits legacy activities of international tribunals toĀ strengthening the rule of law in communities recovering from conflict. This narrower concept of legacy emphasises enhancing national capacity to conduct domestic trials, in part by using international trials as a "demonstration" of model prosecutions. This approach prioritises activities such as knowledgetransfer between international and national staff, training and facilitating legal reform, and is typically supported by those financing international institutions, such as theĀ United Nations and national governments.

A broader approach to legacy tends to place greater demands on international justice in facilitating the path towards peace. This sentiment is reflected in the preamble to theĀ Rome statue which specifically recognises that accountability and stability are inexorably intertwined insofar as "grave crimes threaten the peace, security and well-being of the world". Other tribunals established prior to the ICC, such as the UN tribunal investigating the Rwandan genocide, wereĀ established under the expectation that prosecutions would "contribute to the process of national reconciliation". This more ambitious approach is generally pushed by civil society to advance initiatives outside the courtroom, such as the construction of theĀ Peace Museum documenting the civil war in Sierra Leone.

As yet, there has been little discussion of the extent to which these different concepts of legacy should apply to the ICC. This is an unfortunate example of not learning from past mistakes. Prior international tribunals were also late to consider the broader impact of their efforts ā€“ including those for theĀ former Yugoslavia, Rwanda and forSierra Leone ā€“ and only seriously began addressing the issue of legacy once they were required to define their strategies for the completion of their mandates.

The ICC requires a new conceptualisation of legacy. Unlike past UN tribunals, the ICC is the first permanent international court and the first court with global application. It was established by treaty instead of a UN resolution or agreement, and it has 121 state parties to its statute.

At first blush, it appears that a permanent court might not require consideration of legacy because its operations do not cease and therefore there would not be any requirement for a completion strategy nor an assessment of the court's impact. However, ultimately the court will disengage from certain countries under investigation once trials are completed, and it is essential to start thinking about such scenarios earlier rather than later.

Similarly, it could be argued that the global reach of the ICC ensures that it might not be possible to devise a singular legacy strategy for the entire court. It is indeed important that tailor-made legacy strategies be elaborated for each country, which must be planned from the beginning of the interaction with a given country, in consultation with key stakeholders, particularly with victims. However, there are strategies linked to legacy that apply to all of the court's operations.

Central to the definition of legacy for the ICC is the concept ofcomplementarity. The Rome Statute is premised upon the notion that the ICC is a court of last resort which "complements" domestic jurisdictions. Under this principle of complementarity, the ICC is specifically mandated to facilitate national courts in pursuing international crimes. Thus complementarity strengthens the rule of law within the narrower vision of legacy, without excluding scope for proposing broader legacy objectives.

But if complementarity offers great promise in theory, it has been underutilised by the ICC in practice. There have been some training conducted by the ICC with local practitioners but this has not been consistent nor is it apparent that this has been implemented in accordance with a broader legacy strategy or policy. The secretariat to the assembly of state parties (the body of states which have accepted the ICC's jurisdiction) has been mandated to facilitate the actualisation of complementarity but to date the most feasible proposal has been a website for information sharing which has yet to be launched. In 2009, some state parties to the ICC made pledges on how they would facilitate complementarity which have yet to be reviewed by the assembly.

In terms of conceptualizing legacy more broadly, there may be concerns that stepping beyond complementarity could lead towards a wishlist that alienates donors who are already struggling to pay for justice in austere economic times. However, it is critical to emphasise that victims concerns are central to the rationale for the existence of the ICC, and as such, engaging with expectations is central to the objectives of the court. Although consultations and dialogue around legacy may result in demands on the court that are broader than completing trials or facilitating complementarity, it is highly possible that communities may raise broader legacy objectives which are attainable within the remit and budget of the court.

The question of the legacy of the ICC cannot be avoided. To mark the various events surrounding the 10th anniversary of the court, the ICC and the assembly of state parties must act on its complementarity obligations, and engage in proactive public information and outreach campaigns to begin examining its broader impact.

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