The International Criminal Court (ICC) is a court of last resort, stepping in only when national authorities are unwilling or unable to do so. This is a key legal pillar known as the principle of complementarity. But because the ICC can only take on a few cases in a particular situation, comprehensive justice will invariably mean that the ICC and national authorities will need to work closely together.
The ICC Prosecutor’s Office has crucial roles to play in supporting national justice efforts. Where it has yet to make decisions on the need for ICC investigations, the office can use its leverage to catalyze domestic justice, particularly where national authorities want to avoid the ICC stepping in. The office can also lend technical expertise wherever it engages with national efforts.
Getting the relationship between the ICC and domestic justice efforts right has been a focus of the Office of the Prosecutor since the court opened its doors two decades ago. The office has recently revitalized discussions around this issue, including through consultations on a forthcoming policy paper.
One of the ways in which the Prosecutor’s Office has supported national efforts was through its annual reporting on its assessment of situations that could warrant an ICC investigation, known as preliminary examinations. These reports provided critical public information. They included factual and legal analysis and assessments that could be used by civil society groups to support their advocacy to mobilize effective justice. They put pressure on national authorities to meet their obligations to avoid a formal ICC investigation. And they provided information for victims and survivors that better equipped them to exercise their rights before the ICC.
Since ICC Prosecutor Karim Khan took office in 2021, these reports have been discontinued and substituted by more general annual reports on the office’s work.
During consultations on the forthcoming policy paper, 42 international and domestic nongovernmental organizations jointly requested that the prosecutor bring back detailed, situation-specific public reporting. While past reports were specific to preliminary examinations, such information would be valuable wherever the office engages with national justice efforts. The groups thus called on the Prosecutor’s Office to expand its reporting to any context where it is monitoring or supporting national proceedings.
The public information currently shared does not serve these purposes, but the Prosecutor’s Office can and should fill this gap. Transparency is key to realizing victims’ rights and ensuring that the ICC can be an effective catalyst for domestic justice.
