The interplay between complementarity and transitional justice

LL.M. (International Law)The after-effects of the Second World War (WWII) and the Cold War that followed engendered a radical paradigm shift in the collective accountability for international crimes. Indeed, institutions have been established to take stock of the catastrophic effects of wars and enable states to come to terms with their confrontational past. The Nuremberg and Tokyo trials mainly focused on reigning in military leaders who perpetrated mass killings. These trials laid the foundation for a reconfiguration of the international criminal justice. This study argues that the complementarity principle in the classical sense and the prosecutorial strategy of the Office of the Prosecutor (OTP) of only bringing to justice high-level perpetrators effectively creates an impunity gap if states are unwilling and unable to prosecute. Therefore, positive complementarity becomes necessary for the ICC to encourage states to prosecute both high and low-level perpetrators. In an endeavour to achieve this, TJ mechanisms become necessary as they provide a holistic approach, i.e. involvement of victims, provision of reparations and prosecution of offenders. The statute of the International Criminal Court (Rome statute) is said to have a so-called “catalysing effect” on domestic criminal justice systems by some authors mainly because the principal obligation to investigate and prosecute international crimes is entrusted to the domestic criminal justice systems. The ICC may exercise its prerogative over a case only if the states have not genuinely investigated or prosecuted the perpetrator. However, the catalysing effect of the complementarity principle can be discordant with transitional justice (TJ) mechanisms in post-conflict societies where justice might have to be compromised over peace and vice versa. This has been observed where measures such as amnesty, the use of Truth and Reconciliation Commissions (TRCs), and pardons have been solicited by rebels or de facto holders of power, such as military chiefs, as a way of evading accountability