32 - Positive complementarity in action

Summary

The International Criminal Court (‘ICC’) is not meant to be a passive institution, simply waiting for the Security Council, States Parties and Article 12(3) states or others to seize the Court. It has its own responsibility to inspire states to fulfil their duties, not merely by example, but also by actively encouraging them to bring those responsible for crimes under international law to justice. In situations under investigation, the Office of the Prosecutor should vigorously investigate and, where there is sufficient admissible evidence, prosecute not only the highest level suspects, but also, if necessary, reach down lower. In so doing, it might shame national authorities into fulfilling their shared responsibility by investigating and prosecuting all the other cases that were beyond the Court's current resources.

Second, the Office of the Prosecutor should encourage states to ratify the Rome Statute and the Agreement on the Privileges and Immunities of the International Criminal Court (‘APIC’) and to enact effective implementing legislation to give their police, prosecutors and investigating judges the necessary tools to end impunity.

A policy of leaving it to states to devise alternatives to justice appears to be in direct conflict with the Preamble of the Rome Statute, in which the States Parties affirmed ‘that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level’, ‘determined to put an end to impunity for the perpetrators of these crimes’ and recalled that, ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. No exceptions are listed.