{"id":4966,"date":"2023-11-02T05:13:35","date_gmt":"2023-11-02T04:13:35","guid":{"rendered":"https:\/\/michaelgkarnavas.net\/blog\/?p=4966"},"modified":"2023-11-02T05:15:03","modified_gmt":"2023-11-02T04:15:03","slug":"draft-policy-on-complementarity","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2023\/11\/02\/draft-policy-on-complementarity\/","title":{"rendered":"Draft Policy on Complementarity and Cooperation: Everything Everywhere All at Once"},"content":{"rendered":"

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There is a great evil that has taken root in my world and has begun spreading its chaos throughout the many verses. I have spent years searching for the one who might be able to match this great evil with an even greater good and bring back balance. All these years of searching have brought me here, to this universe. To you.<\/p>
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You saw her potential, so you pushed her beyond her limit. Though the overloaded mind usually dies, instead her mind was fractured. Now her mind experiences every world, every possibility, at the same exact time, commanding the infinite knowledge and power of the multiverse. Now she\u2019s seen too much, lost any sense of morality, any belief in objective truth.<\/p>
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I\u2019ve seen thousands of Evelyns, but never an Evelyn like you. You have so many goals you never finished, dreams you never followed. You\u2019re living your worst you.<\/p>
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Everything Everywhere All at Once<\/a><\/p><\/blockquote><\/p>\n

Bold or brash, expansive or unfeasible, imaginative or chimerical.<\/p>\n

\"\"
ICC Prosecutor Karim A. A. Khan KC<\/figcaption><\/figure>\n

In his two-page preface to the 39-page Draft Policy on Complementarity and Cooperation<\/a>, International Criminal Court (ICC) Prosecutor Karim A. A. Khan KC explains his \u201cnovel and imaginative ways to partner with national authorities, civil society and all actors to bring new life\u201d in realizing the Rome Statute\u2019s goals. Having made this promise in his swearing in speech in June 2021, Prosecutor Khan sets out to make good on his word. In response to a claimed new reality and changed landscape where domestic authorities are asserting themselves in prosecuting core international crimes in domestic courts, he purports to offer a renewed approach where the:<\/p>\n

efflorescence of joint efforts of domestic authorities to exchange information and complement evidence collection activities \u2026 can be achieved through a proactive and dynamic approach by all actors involved, with the [Office of the Prosecution (OTP)] focused simultaneously on delivering on its core investigative mandate while significantly increasing its ability to interface with, and support, efforts of other criminal jurisdictions and accountability actors.<\/p>\n

Is this a new dawn for the OTP? Has the ICC leviathan awakened, ready to be all it can be? Have the international and domestic landscapes been altered by ongoing events or epiphanic eurekas or moments of clarity?<\/p>\n

Forgive my reticence in buying into the notion of a changed landscape of domestic prosecutions militating for a renewed OTP approach. The application of universal jurisdiction has been around for some time. States that exercise it \u2013 mainly in Western Europe and generally ICC States Parties \u2013 do so quite successfully and quite respectfully of the fair trial rights of the accused. That is not where the problem lies \u2013 though more uniformity in the application of universal jurisdiction would garner greater confidence in accepting the process and results.<\/p>\n

As for domestic prosecutions of core international crimes committed on the territories of or by nationals of ICC States Parties, do they not already have an obligation under primacy to investigate and prosecute those crimes? Under complementarity, does not the ICC, entrusted with subsidiarity, have an obligation to ensure that such crimes are prosecuted domestically \u2013 and properly, including affording accused their full enjoyment of fair trial rights? And would not the ICC only step in if there is an unwillingness or inability to genuinely investigate or prosecute? Does not the notion and practical aspects of complementarity envisage cooperation between the OTP and States Parties in ensuring that domestic trials of core international crimes are conducted in a fair and expeditious manner? Would this cooperation not entail a host of things between the ICC and domestic authorities of States Parties?<\/p>\n

Maybe the level of cooperation envisaged in the Draft Policy has been lacking or not sufficiently available or welcomed. If so, wishing greater cooperation by claiming a changed landscape without noting, explicitly, the reasons for any failures or misgivings or inabilities for the lack of cooperation and coordination between the OTP and States Parties where core international crimes were committed and where domestic investigations and prosecutions should have occurred does not change anything.<\/p>\n

Laudably, Prosecutor Khan circulates his \u201cnovel and imaginative ways\u201d for comment. Expect civil society \u2013 which played an imposing role in the selection process for the position of ICC Prosecutor, a role it continues to play in influencing the work of the OTP \u2013 to weigh in. States Parties are also likely to chime in. They should. It is not just about feasibility. Costs and direction will also raise concerns.<\/p>\n

Even were funds and secondments and sharing and cooperation to generously flow into the OTP to meet Prosecutor Khan\u2019s conceptualization of the ICC, and in particular the OTP\u2019s mandate under the Rome Statute, the Draft Policy is heavily resource dependent. States Parties will have to loosen their purse strings \u2013 appreciably. It is also cooperation dependent, something that has been lacking at times. And it is perception\/realization dependent \u2013 what exactly is the ICC? Is it a court of last resort? Is it a judicial institution? Is it a humanitarian organization or a human rights body? Is it a hybrid international\/non-governmental organization? Is it in the business of trying cases under its jurisdiction, or is it also a post-conflict, institutional-development, state-building contrivance? Is it a little of everything? And if so, what is its primary function, if any?<\/p>\n

Maybe I am too provincial and see the ICC first and foremost as a criminal court. Maybe I am too conservative or unimaginative in my thinking. With the OTP punching far below its weight since the ICC came into existence, is it too limiting or ordinary or uninspiring to ask whether the OTP should refrain from raising extravagant expectations? Should it not focus its energies and resources on the mundane \u2013 preliminary examinations, investigations, and prosecutions? I think so.<\/p>\n

\"\"More practical than theoretical, more to the point than waxing poetic, more concrete than nebulous, I find the Draft Policy to be an eloquent efflorescence <\/em>of supposed meaningful achievements (outside the court room where there have been precious few) and visionary imaginable aspirations that thus far some have proved unrealizable. Grandiloquent as it may be, rich with throat-clearing phrases and impressively sounding aims (donor-soliciting speak), I also found it an exceptionally tiring read. It reminded me of the weekly reports I would come across when working at international organizations and NGOs, where much ink was spent exaggerating and embellishing achievements and achievements-in-the-making, of little or no consequence, repackaged in impressively sounding language. I am not accusing Prosecutor Khan of embellishment, but like the famous Wendy\u2019s hamburger ad with the slogan \u201cWhere\u2019s the Beef<\/em><\/a>\u201d the Draft Policy recounts much and promises even more. All bun, miniscule meat.<\/p>\n

Smothered in project-talk \u2013 the use of words and phrases common when soliciting funds for capacity-building projects \u2013 the Draft Policy boils down to four pillars (which can be expressed in about 65 words in active voice):<\/p>\n