Where should justice for some of the world’s worst crimes be done? In national courts or at the International Criminal Court in The Hague?

The Rome Statute of the International Criminal Court — currently signed by 139 states — is the treaty that created the International Criminal Court (ICC). In effect, it established a new system linking the national and international court systems to deal with the most egregious crimes: war crimes, crimes against humanity, and genocide.

At the heart of that new system is the idea that, first and foremost, the courts at the national level should deal with cases of serious violations. And the ICC, according to the Rome Statute, is complementary to those national jurisdictions.

This is where the word we now frequently use in reference to the Rome Statute system comes from, complementarity.

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It has become obvious from the cases that have been considered by the ICC so far that complementarity is one of the most important concepts — if not THE most important concept —in the Rome Statute and the global fight to end impunity for serious crimes.

How complementarity works and what its impact has been on the ICC and national authorities are critical aspects of today’s debate about how best to pursue justice for victims.

To explain this complex sphere of international criminal law, ICTJ recently released The Handbook on Complementarity: An Introduction to the Role of National Courts and the ICC in Prosecuting International Crimes, written by Vice President Paul Seils. The 100-page book, available for free download, describes the current laws and practices related to complementarity for readers who are not specialists. 

Readers will not find in the handbook discussions of the merits or demerits of particular ICC cases – or opinions on if the ICC prosecutor should have brought charges against one suspect over another . Nor will they find inroads on questions like whether the ICC has unjustifiably targeted African leaders.

“After reading the handbook, readers should have a solid understanding of complementarity, what it means for national legal systems, the ICC, and victims, and how key cases on the issue have been decided so far.”

Instead, by describing how complementarity works in practice and how it has been applied in countries like Afghanistan, Colombia, Cote d’Ivoire, the Democratic Republic of the Congo, Kenya, and Libya, the handbook is meant to provide readers with a deeper understanding of the inner workings of the ICC and national courts and make some of the debates surrounding the court more critical and less polemical.

A Court of ‘Last Resort’

It was in the late 1990s, after the genocides in Rwanda and the former Yugoslavia, that governments were moved to come together to create an independent, permanent international criminal court that would be powerful enough to hold accountable those most responsible for serious crimes— regardless of their rank. 

UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, during which the statute of the ICC was adopted by the conference and opened for signature on July 17, 1998. (ICC-CPI)

When the ICC was set up, nearly two decades ago at an international conference in Rome, there was a clear recognition that impunity was unacceptable for the world’s most serious crimes — genocide, war crimes, and crimes against humanity — and that it represented a threat to peace and democracy everywhere.

It was decided early on that the ICC would accept no immunities, no amnesties, even for those at the very top.

At the heart of the new system that emerged from the Rome Statute was the idea that the courts at the national level should deal with cases of serious crimes first and foremost. The ICC should only deal with cases under very limited circumstances, as a court of “last resort.”

The Rome Statute says in its very first article that the ICC will be complementary to national jurisdictions:

There are at least four reasons for the complementary system:

1) It protects the accused if they have been prosecuted before national courts.

2) It respects national sovereignty in the exercise of criminal jurisdiction.

3) It might promote greater efficiency because the ICC cannot deal with all cases of serious crimes.

4) It puts the onus on states to do their duty under international and national law to investigate and prosecute alleged serious crimes (that is, it is not just a matter of efficiency but a matter of law, policy, and morality).

Understanding Complementarity

To understand the idea of complementarity we have to understand the alternative. The choice facing the international community was to create an international court with either primary jurisdiction or complementary jurisdiction.

“The idea of criminal justice goes to the very heart of sovereignty. One of the defining notions of sovereign power is the state’s monopoly of force, which is epitomized in the power of the police to detain and arrest and of the court to try and punish.”

Having primary jurisdiction would have meant that the ICC would have the power to deal with any case, even if the national authorities were already trying to do so.

This was the system used for the International Military Tribunal at Nuremberg (1945) and the International Military Tribunal for the Far East (1946), as well as for the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda in the 1990s.

Arguments in favor of a complementary system won out, mainly because states held firm to the notion of state sovereignty. Indeed, the ICC, as a voluntary treaty body, is grounded in the consent of states that sign up to its terms.

Another reason for giving primacy to national courts was efficiency: It is typically more practical and less expensive for courts trying cases to be near the alleged victims, perpetrators, and crime scenes and to use local languages.

But for many working on issues of the rule of law and transitional justice, one of the main reasons for valuing national proceedings above international ones wherever possible is that they can help to restore public confidence in national institutions that failed citizens, as often happens amid conflict or repression.

“When done properly and fairly, national proceedings can help restore public trust in the basic rules of society and show victims that their rights are taken seriously” says Seils.

Article 17: Rules for Resolving Where to Try a Case

In reality, everything that falls under the concept of complementarity actually relates to questions of admissibility: whether or not a case is admissible before the ICC.

To make a case inadmissible, a national authority must show that it is already dealing with a case that sufficiently mirrors the ICC’s case.

The most important sections of the Rome Statute dealing with this issue are found in Articles 17–20 and Article 53. Of these the most important is Article 17: Issues of Admissibility.

Article 17 describes the three scenarios for finding a case inadmissible:

It then goes on to provide two exceptions to the admissibility rule if national authorities are already dealing with the same case: if they are either unwilling or unable to carry out fair proceedings.

In its essence, Article 17 provides the rule for resolving a conflict of jurisdiction between the ICC and the national court. It helps determine which court has the ultimate right to investigate and try a case.

The Two-Step Process of Complementarity

As the handbook explains, the ICC has made it clear that a challenge of inadmissibility has to be dealt with in a Two-Step Process.

The handbook provides readers with helpful infographics to navigate this process, which is the crux of the complementarity system.

The Two-Step Process asks slightly different questions depending on which stage of proceedings the national authorities may be in. Only if you understand how the process works will you understand the right questions to ask about complementarity.

For example, if the state informs the court that it has already investigated the same case and decided not to prosecute, Article 17(1)(B) applies.

In this scenario, one must verify the facts by answering a question in composite form: Has there been an investigation into the same case AND did the state decide not to prosecute the suspect?

If the answer to either part of that question is NO, the ICC case is admissible. If the answer to both parts is YES you need to move an evaluation of whether the state decided not to prosecute because of an unwillingness or an inability.

The evaluation, or assessment, of the state’s willingness or ability to carry out genuine proceedings is conducted by ICC judges based on evidence and information provided to it by the state having jurisdiction regarding any national investigations or prosecutions that may be taking place in relation to the same suspect or same conduct. If the judges determine that the state decided not to prosecute because it was unwilling or unable, the case is admissible before the ICC.

Does It Have to Be the Exact Same Case?

In a lot of circumstances the idea that the national authorities must deal with the “same case” or “same conduct” as the ICC raises no real difficulty: If the ICC is prosecuting Mr. A for committing the murder of Mrs. B by shooting her in the back in Town C on January 1, 2010, and the national prosecutor brings the same case in all of these particulars, then there can be no doubt that both courts are pursuing the same case.

However, given the nature of the crimes the ICC is set up to deal with — genocide, war crimes, and crimes against humanity — cases are rarely as simple as this.

Fatou Bensouda, current ICC Prosecutor 

With the massive scale of violations typical of such crimes, which often affect dozens if not hundreds or thousands of victims, it is impossible to prosecute each and every act that allegedly occurred.

“There would simply be too much evidence and it would take too long to carry out investigations and trials,” explains Seils.

The prosecutor has to choose which crimes to investigate, putting together the best possible case and strategy, showing who was in charge when the violations allegedly occurred, who played what kinds of roles, how it was done, and what the result was.

But for many reasons (some valid and others less valid), state prosecutors may not choose the exact same incidents to try as the ICC prosecutor. Given the constraints on states after a conflict or a reform government takes over, resources and assets like political will and stability may be in painfully short supply.

At the same time, states cannot hide behind national proceedings that are not genuine and that fail to address the most serious cases in terms of suspects and conducts. This is why the ICC insists that the same case be pursued.

The Same-Case Test raises important questions about how much discretion national authorities should have about the specifics they include in a case when challenging an ICC case on admissibility grounds.

“If a national authority does what the Rome Statue was set up to encourage it to do—that is, prosecute serious crimes in good faith—even individuals with power and political influence will be brought to the bar to face justice,” says Seils.

Germain Katanga appears for the first time before the ICC, July 10, 2009. (ICC-CPI / Robert Vos)

The Katanga Case and the ‘Slogan’ Version of Complementarity

The Two-Step Process was a critical issue in the case of Germain Katanga, who was tried at the ICC in The Hague from 2009 to 2014. It presented the ICC with its first chance to consider a challenge based on complementarity.

Popular understanding of complementarity has focused on the state’s unwillingness or inability to investigate or prosecute a crime. This understanding, termed the “slogan” version of complementarity, tends to overlook the first part of the Two-Step Process, which asks: have national authorities already investigated the same case? If the crime has never been investigated, it is admissible before the ICC, regardless of the state’s willingness or ability to prosecute.

Katanga was allegedly the Commander of the Front de Resistance Patriotique en Ituri (FRPI), an armed militia in the eastern part of the DRC. He, along with Mathieu Ngudjolo Chui, was charged by the ICC prosecutor with murder, the use of child soldiers, rape, sexual slavery, the intentional targeting of the civilian population, and pillage.

The crimes were all alleged to have occurred during an attack by FRPI troops under the command of Katanga and Ngujolo Chui on the village of Bogoro, in Ituri, on February 24, 2003. The prosecution alleged that over 200 civilians were killed in the attack.

Katanga was arrested by the Congolese authorities in early March 2005 in connection with the killing of nine UN peacekeepers in a separate incident. He was held without charges until his transfer to the ICC. Once in The Hague, Katanga challenged the admissibility of the ICC’s case on several grounds, including that it violated the principle of complementarity.

Katanga’s defense asserted that the DRC had been “willing” to try him at the time of his arrest and that he had been charged with crimes against humanity, making the ICC case inadmissible.

Villagers flee their homes in Sake, North Kivu province, DRC, as fighting erupts between government forces and rebel groups, April 30, 2012. (UN Photo/Sylvain Liechti)

On the other hand, information provided by the Congolese state to the court about the case refuted these claims. The DRC maintained that it had not carried out investigations into the Bogoro incident and that a 2007 document referring to the Bogoro incident, which had been produced as evidence by the defense, was merely “procedural,” aimed at extending Katanga’s detention for other crimes.

The national proceedings did not involve the same case. Therefore, none of the scenarios in Article 17 applied — the case was admissible.

However, in response to the defense’s admissibility challenge, the ICC Trial Chamber invoked what may be described as the short-hand, or “slogan,” version of complementarity. The Trial Chamber overlooked the first question of the Two-Step Process and said that the DRC authorities had no intention of investigating or prosecuting Katanga, so the state was “unwilling” to do so.

In an interesting twist, this led the ICC judges to explain that there were two kinds of unwillingness: unwillingness aimed at obstructing justice and unwillingness aimed at ending impunity. The DRC showed the second type — the Trial Chamber said that the reason for the DRC’s unwillingness was, in effect, to enable the ICC to try Katanga.

In the appeals phase, the ICC Appeals Chamber again found that the case was admissible — but for different reasons. It found that the Trial Chamber had misinterpreted Article 17 and stated that the DRC was not “unwilling” to investigate Katanga, but that the case was “inactive.” 

“In Katanga’s case, no investigation had taken place or was taking place at the national level. Therefore, the case was already admissible without looking at the issue of the state’s willingness or ability to investigate or prosecute.”

The Appeals Chamber explained that willingness or ability of the state should only be assessed if 1) there are ongoing investigations or prosecutions or 2) if there have been investigations and the state decided not to prosecute — therefore, putting the focus on the first question of the Two-Step Process, not the second.

“It is only when the answer to these questions is in the affirmative that one has to look at . . . the question of unwillingness and inability. To do otherwise would be to put the cart before the horse,” noted the ICC Appeals Chamber.

“In Katanga’s case, no investigation had taken place or was taking place at the national level. Therefore, the case was already admissible without looking at the issue of the state’s willingness or ability to investigate or prosecute,” says Seils.

Katanga was ultimately convicted by the ICC as an accessory to the crimes of murder and attacking a civilian population, pillaging, and the destruction of enemy property. He was acquitted of the charges of rape, sexual slavery, and using children under the age of 15 to participate actively in hostilities. He was sentenced to 12 years in jail. This was reduced by the Appeals Chamber to 8 years and 4 months, as he had already spent over 6 years in custody. Katanga completed his sentence on January 18, 2016. He is now being held in the DRC on other charges.

Member of the women's association Asmum during a demonstration in Putumayo, Colombia, to claim for truth and memory for women victims of the armed conflict. (Camilo Aldana Sanín/ICTJ)

Close Up on Colombia

Colombia is home to the Western Hemisphere’s longest-running internal armed conflict, which began in the mid-1960s. Insurgencies by the two main guerrilla groups, the Revolutionary Armed Forces of Colombia (FARC) and the National Liberation Army (ELN), grew out of revolutionary communist and peasant movements of the 1960s.

In the 1980s, right-wing paramilitary groups began forming, comprised mainly of landowners who wanted to protect themselves from guerrilla groups, adding another dimension to the conflict. The largest and most infamous was the United Self-Defense Forces of Colombia, which demobilized in 2006.

Since the beginning of the conflict, approximately 220,000 people have been killed, 25,000 have been forcibly disappeared, and 5.7 million people have been forcibly displaced. Today, the country is home to the world’s second largest population of internally displaced persons, after Syria.

Because of the protracted nature of the conflict, many victims have been waiting for decades for justice and acknowledgment of what happened to them.

Colombia has been under preliminary examination by the ICC since 2004. This means that the ICC has been doing an initial assessment of the situation: looking at the information it received or obtained from the state on alleged crimes, evaluating if the crimes fall under the ICC’s jurisdiction, analyzing their admissibility and gravity, and deciding whether or not to open an investigation.

Orlando, a member of Front 36 of the Revolutionary Armed Forces of Colombia (FARC) reading in a camp in the Antioquia region, in January 2016. (AP Photo/Rodrigo Abd)

“The key difference between the examination phase and investigation phase relate to the specificity of the inquiries the ICC can make in relation to information,” says Seils. “For complementarity, it is the preliminary examination phase that is of particular importance.”

The court has been looking into allegations of war crimes in the country since November 1, 2009, and alleged crimes against humanity since November 1, 2002. (Colombia acceded to the Rome Statute on August 5, 2002.) Under investigation are alleged violations by government forces, paramilitary groups, and guerilla groups.

Some have expressed concern that the ICC’s Office of the Prosecutor has been too “patient” with its approach to violations in Colombia and that it may have been better to have opened an investigation and put the onus on the state to demonstrate that it was carrying out genuine investigations.

“Colombia has gone through different stages during preliminary examination,” says Seils. “At one point it was difficult to see that serious steps were being taken to bring national prosecutions forward against the most responsible."

“This was especially the case when President Uribe authorized the extradition of 14 paramilitary leaders to the United State on drug-related charges in 2008, instead of prosecuting them for war crimes in Colombia. The Santos government has presented a more compelling record of practical steps forward on most fronts, but not all.”

In 2005, congress passed the Justice and Peace Law, which offered demobilized paramilitaries reduced prison sentences in exchange for full confessions, with the goal of contributing to “achieving national peace, collaboration with the justice system, and adequate resocialization.”

Colombia set up specific tribunals to try those individuals who came forward.

While there were significant gains from the participation of former paramilitaries, the implementation of the law has not been without its flaws, further delaying justice for many victims.

Most recently, the ICC has said that its main focus is on how the Colombian state is dealing with allegations of murder of civilians by state agents as well as sexual violence.

Although almost 1,000 Colombian soldiers have been tried and convicted of serious crimes by the ordinary justice system in relation to the murder of civilians, the ICC is concerned that the investigations and prosecutions may not have targeted those most responsible.

Colombian President Juan Manuel Santos and FARC leader Timochenko announce the agreement on criminal accountability on September 23, 2015 in Havana, Cuba. (Government of Colombia)

The issue of criminal justice, and punishment, for serious crimes in Colombia has become particularly relevant in the peace negotiations between the government and the FARC in Havana, Cuba. The talks, which began in November 2012, centered on six official negotiation points: agrarian reform, political participation, illicit drugs, victims, ending the conflict, and implementation of the peace accord.

“Reaching an agreement on accountability measures has been the hardest part of the peace negotiations. All parties to the conflict faced allegations of war crimes and crimes against humanity – the Army, the FARC and the paramilitaries,” says Seils. “The ICC and the Inter-American human rights system were on the outside looking in too.”

“Unlike in South Africa, amnesty for serious crimes was simply not an option. Finding a balance between legal obligations on prosecutions, meaningful punishment provisions, and keeping parties engaged in the peace was a massive challenge.”

“Unlike in South Africa, amnesty for serious crimes was simply not an option. Finding a balance between legal obligations on prosecutions, meaningful punishment provisions, and keeping parties engaged in the peace was a massive challenge.”

With regards to both rebels and state agents, some argue that if the Colombian peace process establishes a justice program with disproportionately light sentences given the crimes involved, other countries could cite it as a precedent in designing similarly light sentencing for perpetrators in their own courts that amounts to impunity, undermining the mission of the ICC.

“Colombia demonstrates the difficulty of trying to make peace and punish crimes at the same time,” says Seils. “It is clear that in this case something had to give.”

He adds: “It is naive to think parties will put down their arms and gladly walk into prisons for lengthy terms. The alternative is to give up on the peace process and hope for a military solution that has not been forthcoming for 50 years. The Colombian example may be of relevance in future cases where similar balances of power are at play in a negotiated peace deal. But it’s unclear how often that will be the case.”

A former inmate of the Abu Salim prison in Tripoli, Libya, returned to visit his cell in October 2011. (UNSMIL/Iason Athanasiadis)

A Look at Libya

In February 2011, the Libyan government cracked down against demonstrators and dissidents protesting the rule of Col. Muammar Gaddafi.

Protests were triggered in part by the arrests of government critics. This was not an uncommon phenomenon during Gaddafi’s more than 40-year rule, but in the wake of similar protests across the Middle East, Libyan citizens decided they were fed up and took to the streets. In a vain effort to stop the spread, the government barred reporters from entering the country and blacked out mobile phone coverage and internet access.

As protests grew, state security forces began to cast a wider net against state dissidents. In one incident, security forces allegedly opened fire on a funeral procession for dead protestors, killing at least 15 mourners and injuring many more.

"Because Libya is not a party to the Rome Statute, it took a referral from the UN Security Council for the situation to come before the ICC for consideration. It is one of just two situations (the other being Darfur in Sudan) to be referred to the ICC in this way."

While it is hard to know exactly how many people died during the uprising, a conservative estimate puts the number in the hundreds. Human rights groups also documented at least 10 cases of rape and sexual violence by Gaddafi forces, but the number could be higher.

Because Libya is not a party to the Rome Statute, it took a referral from the UN Security Council for the situation to come before the ICC for consideration. It is one of just two situations (the other being Darfur in Sudan) to be referred to the ICC in this way.

It took less than one week from the time of the referral for the ICC to open an investigation into the killing of unarmed civilians in Libya.

“This is highly unusual,” says Paul Seils, author of the handbook. “It has often taken the ICC prosecutor a matter of years to decide whether or not to open an investigation. Even in the case of Darfur it took three months. The speed of the decision looks like it was intended to play a role in deterring crimes. It is not clear that worked. The Prosecutor is under an obligation to make decisions autonomously. Some critics feel the speed of the decision raises doubts about its autonomy and about whether all the relevant information could have been properly assessed.”

On June 27, 2011, the ICC brought charges of crimes against humanity, for murder and persecution, against three people: Col. Muammar Gaddafi, his son Saif Al-Islam Gaddafi (“the most influential person within his inner circle”), and his intelligence chief and brother-in-law Abdullah Al-Senussi.

There was ample evidence that they were instrumental in the government plan to stop civilian demonstrations “by any means necessary.”

A crowd of demonstrators protest the ongoing use of weapons by rebel militias inside Tripoli, Libya, and the city’s general atmosphere of lawlessness, December 7, 2011. The newly formed government is struggling to assert itself over disparate power actors. (UN Photo/Iason Foounten)

The ICC looked at attacks that allegedly took place in over six locations on February 25, 2011, when nearly 100 people were killed. The ICC believes that the number of incidents and casualties is actually higher, but the true figures are unknown “due to a cover-up operation that included the destruction of cemeteries, disruption of communications networks, and attacks on the press.”

With the overthrow of Gaddafi on August 25, 2011, circumstances changed materially in the country very quickly.

The ICC withdrew its arrest warrant against Col. Gaddafi in November, after he was murdered by rebel forces on October 20, 2011.

The new Libyan government informed the ICC in May 2012 that it intended to carry out prosecutions against Saif Al-Islam Gaddafi and Al-Senussi. It wrote to the ICC Prosecutor, “The Libyan Government is committed to attaining the highest international standards both for the conduct of its investigations and any eventual trials.”

The Libyan Prosecutor‐General opened an investigation into serious crimes allegedly committed by Gaddafi and Al-Senussi during the 2011 revolution. Al-Senussi was arrested in Mauritania in March 2012 and is being held in Tripoli, after being extradited back to Libya.

“This presented an entirely different set of questions for the ICC regarding national prosecutions compared to before the referral,” says Seils.

In the case of Saif Al-Islam Gaddafi, the ICC’s Pre-Trial Chamber said that because of ongoing problems, the Libyan courts would not be able to carry out genuine proceedings against him. The ICC was concerned because the defendant’s access to defense counsel could not be guaranteed, as he is in the custody of militias in Zintan, a Libyan town not under the government’s control.

However, this was not the reason for finding the case inadmissible. Rather, it was due to the lack of clear information from the Libyan authorities about their case against Gaddafi, which meant the ICC judges could not tell precisely what the national case was.

From left, ex-spy chief in Muammar Gaddafi’s government Abdullah al-Senussi, ex-intelligence chief Buzeid Dorda, and ex-Prime Minister Baghdadi Mahmudi sit behind bars during a hearing at a courtroom in Tripoli, Libya, April 14, 2014. (Ismail Zitouny/Reuters)

Although at first the ICC had maintained that Libya would not be able to hold national proceedings against Al-Senussi either, Libyan authorities were eventually successful in their appeal regarding his case. The ICC was provided with sufficiently clear information to establish the national case against him.

“While the security issue was not determinative in these cases, one major difference between the Gaddafi and Al-Senussi cases was that Al-Senussi was already in official state custody and the guarantees of defense counsel being provided for him could be relied on more easily,” says Seils.

Al-Senussi was sentenced to death by a Libyan court for war crimes in July 2015, but it is likely the decision will be appealed. Human rights organizations have raised concerns that the trial failed to live up to international fair trial standards.

Now, the only remaining Libya-related case at the ICC concerns Saif Al-Islam Gaddafi. He was tried in absentia for war crimes court and sentenced to death in July 2015.

ICC Prosecutor Fatou Bensouda continues to call on Libyan authorities to hand him over to the court in The Hague for trial. But because the ICC does not have its own police force, the court will have to wait until he is apprehended and extradited.

“Now, the apprehension of Saif Al-Islam Gaddafi will be the ICC’s main focus regarding Libya,” says Seils. “There are some questions about how the ICC’s Appeal Court addressed his case. The moderately more flexible approach proposed by the ICC’s Pre-Trial Chamber looks like it understands better both the purpose of complementarity and the challenges facing national authorities in these kinds of circumstances."

Guatemala’s High Risk Court finds former military dictator José Efrain Ríos Montt guilty of genocide and crimes against humanity against the indigenous Mayan Ixil, April 18, 2013. The Constitutional Court of Guatemala later overturned the conviction, and he is now being retried. (Sandra Sebastián/Plaza Pública)

National Courts as the First Line of Defense

In the global fight to end impunity, the first line of defense continues to be national justice systems. The national courts

The ICC has an important role to play, but, again, it is a court of “last resort” that must work with domestic systems.

For national efforts to be effective there are a number of steps that states can take to show they are serious about prosecuting serious crimes — including by trying high-level suspects who may have seen themselves as above the law.

These steps, which do not necessarily require spending huge sums of money, include:

• putting together the right kinds of investigation teams

• mapping alleged crimes

• selecting the correct issues for investigation

• maintaining effective communications with victims and the public (to earn their trust, but not harm a suspect’s presumption of innocence)

• conducting focused, proactive, courageous investigations

Experience shows that without the significant help of civil society organizations working in the country (or the pressure they can put on governments) the chances of seeing justice tend to be low. Oftentimes, these groups are the closest link to victims — or are victims themselves.

In Guatemala, for instance, civil society groups were instrumental in bringing to trial former dictator José Efraín Ríos Montt for his role in the genocide of indigenous Mayas during the country’s 36-year internal armed conflict.

In 2013, Ríos Montt became the first former head of state to be tried for genocide by the national authorities in a credible national court in the country where the crimes took place. Although the decision was later overturned and he is now being retried, it took years of relentless organizing by civil society and cooperation with international partners to begin to prosecute him and others considered the most responsible.

“It will be the quality of national efforts improving in the next 10 to 20 years that will determine the overall success of the project embodied in the Rome Statute.”

“There are enormous efforts by the victims and victims’ organizations, who have been battling all these years for truth and justice. There’s an effort by relatives of the disappeared to find their loved ones and bury them. And by relatives of victims of extrajudicial execution, or survivors of sexual violence, to get justice for those cases,” says Claudia Paz y Paz, the attorney general responsible for overseeing the prosecution of Ríos Montt.

“[It is] efforts supported both by national and international figures and institutions that allow these cases to go forward.”

The clearer the vision of national prosecutions, the easier it should be to secure international support for these efforts. Many governments provide generously for rule of law and access to justice programs through various forms of international aid and development programs.

But states offering support should ensure that there is coordination with the national authorities, that there is no duplication of efforts (or parallel systems), and that there is no confusion in the messages being put forward about the state’s commitment to address the crimes of the past as part of its broader commitment to re-establish trust in the rule of law in the country. In this regard coordination with civil society organizations is also helpful.

At its core, the Rome Statute system — and the concept of complementarity — present a means for the international community to ensure that states make genuine efforts to hold perpetrators of serious crimes accountable, and to step in when states are either unable or unwilling to do so.

Says Seils, “It will be the quality of national efforts improving in the next 10 to 20 years that will determine the overall success of the project embodied in the Rome Statute.” 

Download the full handbook for free to learn more about the legal and political logic of complementarity and how the ICC has interpreted it so far.

In the handbook, you will find extensive answers to all these questions and more:

• Why a Complementary Court?

• What are the ten core aspects of the Rome Statute?

• How is the ICC structured?

• What are the Rules on Complementarity and what has the ICC said so far?

• What are the requirements for genuine proceedings?

• Admissibility: Who Can Do It and When?

• What should national prosecutors do?

• What should civil society, the international community and the ICC do?


The International Center for Transitional Justice acknowledges the generous financial support of the European Union and the Austrian Development Cooperation, which supported the writing and publication of this handbook.