Evolving U.S. Efforts to Support Domestic Accountability
American Society of International Law Discussion Paper
12 Pages Posted: 1 Dec 2010
Date Written: November 30, 2010
During the review conference of the International Criminal Court in Kampala, Uganda, the large and well prepared United States delegation announced a new policy of "principled engagement" with the Court. The American Society of International Law commissioned eight expert papers on the direction that engagement should take, with particular focus on four topics: fostering state cooperation with the Court, developing complementarity between national and ICC jurisdiction, strengthening the impact of the Court on victims and witnesses, and shaping the Court’s jurisdiction over the crime of aggression. This essay was written as part of the ASIL report and proposes a series of specific recommendations designed to strengthen the principle of complementarity, which in practice may be the fulcrum supporting the long term legitimacy and effectiveness of the ICC as an apolitical arbiter of justice. The Rome Statute established a treaty-based framework for a permanent supranational prosecutorial authority built on the principle that state sovereignty can be subordinated on occasion to the goal of achieving accountability for egregious international crimes. Properly understood and implemented, the jurisdictional relationship between the ICC and sovereign states is conceived as a tiered allocation of authority to adjudicate. The creation of a vertical level of prosecutorial authority that operates as a permanent backdrop to the horizontal relations between sovereign states in large part depended on a delineated mechanism for prioritizing jurisdiction to serve the ends of authentic justice while simultaneously preserving sovereign rights. The balance of adjudicative authority between the ICC and states is therefore the bridge that carries the weight of the entire Court structure. In fact, the complementarity structure was an integral component of the overarching multilateral agreement without which the ICC would arguably not have been created. The unambiguous reaffirmation of the complementarity principle by the Assembly of States Parties at the 2010 Kampala Conference means that the U.S. policy preference for assisting states in strengthening domestic prosecutorial systems should move ahead reflecting a principled harmony of values rather than being misbranded as a manifestation of institutional hostility. In the wake of the Kampala Conference, U.S. policymakers and legislators have a clear window of opportunity to augment the efforts of the Assembly of States Parties by reinvigorating aid to domestic systems seeking to develop or enhance domestic capacity to address the enforcement gap that remains an unfortunate reality.
Keywords: jurisdiction, sovereignty, International Criminal Court, complementarity, domestic authority, impunity
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