Positive Complementarity and the Way Forward in the Situation of The Islamic Republic of Afghanistan
The importance of positive complementarity lies in its ability to leave a permanent legacy in the institutions of the State concerned whilst also preserving the ICC’s investigative and prosecutorial resources.
The Preamble of the Rome Statute emphasises that the International Criminal Court (ICC) ‘shall be complementary to national criminal jurisdictions’. Article 1 of the Statute adopted a similar wording, and the principle of complementarity is integral to the admissibility provisions in Articles 17 and 19 of the Statute. The doctrine, enshrined in Article 17 of the Statute, intends to strike a balance between the idea of putting an end to impunity on the one hand, and the primacy of national jurisdictions on the other hand. Thus, the principle of complementarity has been consistently emphasised by the Assembly of States Parties (ASP), the leadership of the ASP, and has been a core policy of the Office of the Prosecutor (OTP) at all times.
In this regard, Luis Moreno-Ocampo, the first prosecutor of the ICC, stated at the Ceremony for the solemn undertaking of the Chief Prosecutor, ‘complementarity implies that the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success’. Fatou Bensouda, the second prosecutor, expressly adopted a policy in favour of positive complementarity and stated at the conclusion of the preliminary examination of the situation in Nigeria that she ‘will seek to encourage, where feasible, genuine national investigations and prosecutions by the States concerned’. The current prosecutor, Karim A. A. Khan, also spoke highly about the principle of complementarity on a number of occasions. He said, in his remarks at the ceremony for his solemn oath as the ICC Prosecutor: ‘I undertake in my new position as prosecutor to respect the Statute, to comply with complementarity and insist on independence... . The priority for me, and I believe that is the principle of the Statute, is not to focus so much on where trials take place but to ensure the quest for accountability and end road for impunity are made.’
Besides the statutory provisions and the policy level interest in positive complementarity, the recent Independent Expert Review also makes it plain that positive complementarity not only shall apply in Preliminary Examinations, but must also apply thereafter during the investigation stage. The review recommends, ‘the OTP should consider positive complementarity in the context of the strategy for the situations at all stages of proceedings, and not restricted to [Preliminary Examinations]’. The review further emphasises the broad discretion that the Prosecutor enjoys in relation to situations under investigation, which can be used for the benefit of positive complementarity. Thus, positive complementarity is a well-established and essential principle within the mandate and work of the ICC.
To this effect, the OTP has previously practised positive complementarity in many Preliminary Examinations including Guinea, Columbia, Georgia, the United Kingdom, and Venezuela; see the OTP’s Report on Preliminary Examination Activities 2020. For example, in the situation in Guinea, positive complementarity was put into action through frequent visits by the OTP, engagement by the OTP with a range of actors to encourage national proceedings and the setting by the Prosecutor of specific targets for the national proceedings. There is a body of academic writing and NGO reports assessing the effective use of positive complementarity by the Prosecutor, see for instance here and here.
Although the case of Afghanistan is the first deferral submitted by a State Party pursuant to Article 18(2), it is clear that the principle of positive complementarity is not a dead-end in this situation. The situation underpins that Article18 is capable of being implemented by the OTP and the government of Afghanistan (government) in the same or in a similar way as in a Preliminary Examination, for the following three reasons. First, the very existence of the deferral procedure in Article 18(2) gives effect to the principle of complementarity that genuine national investigations and prosecutions have primacy over ICC investigations. Second, Article 18(3), which provides for the OTP to review the deferral after a period of six months (or upon a significant change of circumstances). Third, Article 18(5), which provide for the OTP to request that ‘the State concerned periodically informs the Prosecutor of the progress of its investigations and any subsequent prosecutions’.
These effectively provide a statutory basis for mechanisms such as information sharing and liaising with the State Parties, which have formed the bedrock of positive complementarity in Preliminary Examinations. The government seems to have already taken practical steps in relation to facilitating cooperation. These include, the establishment and staffing of International Crimes Investigation Directorate at the Attorney General Office mandated to investigate and prosecute international crimes, publication of the Rome Statute in the Official Gazette as a binding legal document, and endorsement of a new Penal Code (2017) in which reflection of international crimes and the ICC interests are said to have been amongst key driving force for its existence, see here, here and here.
In a similar vein, the government has reportedly been able to specify with concrete evidence (i.e. about 250 example cases) the status of its ongoing and concluded investigations. In a progress report filed with the Pre-Trial Chamber in April 2021, the OTP highlighted that the materials submitted by Afghanistan were “voluminous” and that the Prosecution is ‘appreciative of Afghanistan’s continued commitment to addressing accountability for atrocity crimes’. Later in May 2021, a high-level delegation meeting between the OTP and the government reiterated that parties intend to ‘work towards determining how justice may best be served through joint collaborative efforts’ and that parties ‘can jointly advance the cause of justice for all of the victims of the long and devastating conflict’.
In light of the above and taking note of the ongoing peace process and its potential spoilers, it is critical that the OTP and the government engage in setting clear goals as soon as possible and jointly promote genuine national proceedings in conformity with the ICC’s commitment to the principle of complementarity. This will not only advance the cause of justice, but will also help deter crimes by way of conveying a clear message to all current and potential perpetrators that they will not have anywhere to hide from the heinous crimes of international concern. To this end, it is important to ensure that the Afghan national jurisdiction is able to investigate and prosecute all international crimes while benefitting from the support and assistance of the ICC.