Goettingen Journal of International Law 2 (2010) 2, 791-811

Complementarity After Kampala: Capacity

Building and the ICC’s Legal Tools

Morten Bergsmo, Olympia Bekou & Annika Jones

Table of Contents
Abstract ...................................................................................................... 809
A.  Background to the Principle of Complementarity .......................... 794 
B.  Developments Relating to Complementarity During the
Stocktaking Exercise .................................................................................. 797 
I. The Background to the Review Conference ................................... 797
II. Stocktaking in Kampala .................................................................. 799
III. The Outcome of the Stocktaking Exercise .................................. 803
C.  The ICC’s Legal Tools .................................................................... 804 
D.  The Legal Tools and Positive Complementarity............................. 806 
I. Access to legal Information Relating to Serious
International Crimes ............................................................................ 806


Morten Bergsmo is Senior Researcher at the University of Oslo, Faculty of Law,
Visiting Fellow at Stanford University, Visiting Professor, Georgetown University
and Coordinator of the ICC Legal Tools Project; he formerly served as Senior Legal
Adviser and Chief of the Legal Advisory Section of the ICC Office of the Prosecutor.

Olympia Bekou is Associate Professor in Law and Head of the International Criminal
Justice Unit, Human Rights Law Centre (‘HRLC’), University of Nottingham.

Annika Jones is a Ph. D. Candidate at the University of Nottingham and Senior
Research Fellow of the Legal Tools Outsourcing Partners’ Network.

doi: 10.3249/1868-1581-2-2-Bergsmo
792 GoJIL 2 (2010) 2, 791-811

II. Facilitating Transfer of Legal Knowledge and Expertise ............... 808

III. Provision of Legal Skills in the Field of Criminal
Justice for Atrocities ............................................................................ 809
E.  Conclusion .......................................................................................... 811 
 Capacity Building and the ICC’s Legal Tools 793

Abstract
Twelve years after the creation of the first permanent International Criminal
Court and eight years since the entry into force of its Statute, the first ever
Review Conference took place in Kampala, Uganda. Besides successfully
introducing aggression as one of the crimes under the Court’s jurisdiction
and expanding the coverage for war crimes, the Review Conference
provided a timely opportunity to reflect on some of the key aspects of the
Court’s regime. An integral part of the Review Conference was the
“stocktaking exercise”. The exercise provided a platform for the participants
at the Review Conference to reflect on the successes and the failings of the
ICC following the first few years of its operation and to consider measures
that could be taken to enhance and strengthen the Court’s functions in the
years to come. The stocktaking exercise focused on four themes:
complementarity, cooperation, victims and affected communities and peace
and justice. These themes represent major aspects of the ICC’s operation
which will continue to warrant consideration as the Court matures as an
institution. The theme of complementarity is of particular importance
because of its uniqueness to the ICC. The ICC’s complementarity regime
places a primary obligation on States to investigate and prosecute
international crimes. It does so by limiting the jurisdiction of the ICC to
situations where States are shown to be unwilling or unable genuinely to
investigate and prosecute, in respect of cases of sufficient gravity to justify
action by the Court. The principle of complementarity was an innovation,
specifically tailored for the ICC. The Review Conference therefore provided
an important opportunity to reflect on the effectiveness of the principle and
steps that could be taken to strengthen it. This piece will consider the tenor
of the debate concerning complementarity during the Review Conference
and the emphasis that was placed on strengthening national capacity for the
investigation and prosecution of core international crimes. In particular, it
will highlight a significant shift in the use of the term “positive
complementarity”. The term, which had originally been used to refer to the
ICC’s role in the construction of national capacity, was used throughout the
Review Conference to refer to the involvement of States, international
organisations and civil society in strengthening justice at the national level.
It will also draw attention to the efforts that were made during the
Conference to identify means to put positive complementarity into practice
with the hope of overcoming some of the problems that States had faced in
the investigation and prosecution of serious international crimes within their
national systems. The article will go on to discuss the relevance of the ICC
794 GoJIL 2 (2010) 2, 791-811

Legal Tools Project, a unique collection of legal databases, digests and

applications designed to facilitate the application of international criminal
law, to the discussions that took place in Kampala. It will be concluded that
the ICC’s Legal Tools provide an important means of supporting the
principle of complementarity, positive or otherwise.

A. Background to the Principle of Complementarity

Before turning to the discussions that took place in Kampala with
respect to complementarity, it is worth considering the original
understanding of the principle incorporated into the Rome Statute. During
its inception and the early years of the Court’s operation, the principle of
complementarity has been subjected to much academic scrutiny, both in
terms of its constituting elements and the potential ramifications of its use.1
Complementarity strikes a delicate balance between the competing
interests of State sovereignty and judicial independence.2 The balance

1
See, inter alia, J. T. Holmes, ‘The Principle of Complementarity’, in R. S. Lee (ed.),
The International Criminal Court: The Making of the Rome Statute (2002), 41, 45;
M. Benzing, ‘The Complementarity Regime of the International Criminal Court:
International Criminal Justice between State Sovereignty and the Fight Against
Impunity’, (2003) 7 Max Planck United Nations Yearbook 591, 599; J. K. Kleffner &
G. Kor (eds), Complementary Views on Complementarity (2006); M. M. El Zeidy,
‘The Principle of Complementarity: A New Machinery to Implement International
Criminal Law’, 23 Michigan Journal of International Law (2002), 869; I. Tallgren,
‘Completing the International Criminal Order: The Rhetoric of International
Repression and the Notion of Complementarity in the Draft Statute for an
International Criminal Court’, 67 Nordic Journal of International Law (1998) 2, 107;
B. Perrin, ‘Making Sense of Complementarity: The Relationship Between The
International Criminal Court and National Jurisdictions’, 18 Sri Lanka Journal of
International Law (2006) 2, 301.
2
See M. Bachrach, ‘The Rome Statute Explained’, 12 International Law Practicum
(1999) 1, 37, 40; see also J. Pejic, ‘Creating a Permanent International Criminal Court:
The Obstacles to Independence and Effectiveness’, 29 Columbia Human Rights Law
Review (1998) 2, 291, 309-311. Arguably, the protection the ICC provides will
compensate for the relinquishment of whatever sovereign rights. On this particular
issue see R. Bhattacharyya, ‘Establishing a Rule-of Law International Criminal Justice
System’, 31 Texas International Law Journal (1996), 57, 75; see also R. A. Brand,
‘External Sovereignty and International Law’, 18 Fordham International Law Journal
(1995) 4, 1685, 1696-1697.
 Capacity Building and the ICC’s Legal Tools 795

between these two interests was crucial to the materialisation of the Court.3
In order to secure the agreement of States it was necessary to offer national
institutions the primary responsibility over the investigation and prosecution
of international crimes. At its inception, therefore, complementarity was
envisaged primarily as a means of determining the forum that would assume
jurisdiction over a particular case. The Statute recognises that whereas some
States have well-functioning judiciaries, others do not.4 Article 17 of the
Rome Statute allows the ICC to step in and exercise jurisdiction where
States are unable or unwilling genuinely to investigate and prosecute
without replacing judicial systems that function properly.5
When complementarity was first introduced into the Rome Statute,
State Parties could not have foreseen its full practical implications or its
potential to assist the Court in reaching its goal of ending impunity for core
international crimes.6 Since the principle of complementarity allows the
Court jurisdiction only where national institutions are unable or unwilling to
exercise jurisdiction, States may feel ‘forced’ to investigate or prosecute
cases involving core international crimes so as to avoid any intrusion by the
ICC into situations involving their nationals or their territory. The real or
perceived threat of ICC action, encapsulated in the application of
complementarity, serves a useful purpose in practice and came to be
recognised as complementarity’s “catalytic effect”.7
Effective national prosecutions have been an issue since the early
function of the ICC. In 2003, the Court’s Prosecutor, upon taking his
position, suggested that the lack of cases prosecuted by his Office would be

3
B. B. Ferencz, ‘International Criminal Courts: The Legacy of Nuremberg’, 10 Pace
International Law Review (1998) 1, 203, 227.
4
J. L Dunoff, & J. P. Trachtman, ‘The Law and Economics of Humanitarian Law
Violations in Internal Conflict’, 93 American Journal of International Law (1999) 2,
394, 405.
5
J. Crawford, ‘The ILC Adopts a Statute for an International Criminal Court’, 89
American Journal of International Law (1995) 2, 404, 413; see also ‘Establishing an
International Criminal Court; Major Unresolved Issues in the Draft Statute’, 1
International Criminal Court Briefing Series (1998) 1, available at
http://www.iccnow.org/documents/LCHRUnresolvedIssues.pdf (last vistied 27
August 2010); Bassiouni puts it, “complementarity requires deferral to capable
national systems”, M. C. Bassiouni et al., ‘Conference Convocation’, 13 American
University International Law Review.(1998) 6, 1383, 1396.
6
The goal of contributing to the fight against impunity for international crimes is
recognized in the Preamble to the Rome Statute, para. 5.
7
See generally, J .K. Kleffner, Complementarity in the Rome Statute and National
Criminal Jurisdictions (2008), 309-339.
796 GoJIL 2 (2010) 2, 791-811

its major success, if this is to be a consequence of effective national

prosecutions.8 In its 2006 Policy Paper,9 the Office of the Prosecutor (OTP)
further elaborated on this issue, by introducing what has since become
known as ‘a positive approach to complementarity’10:
With regard to complementarity, the Office emphasizes that according
to the Statute national states have the primary responsibility for preventing
and punishing atrocities in their own territories. In this design, intervention
by the Office must be exceptional – it will only step in when States fail to
conduct investigations and prosecutions, or where they purport to do so but
in reality are unwilling or unable to genuinely carry out proceedings. A
Court based on the principle of complementarity ensures the international
rule of law by creating an interdependent, mutually reinforcing international
system of justice. With this in mind, the Office has adopted a positive
approach to complementarity, meaning that it encourages genuine national
proceedings where possible; relies on national and international networks;
and participates in a system of international cooperation.11
For positive complementarity to work, it is not enough to rely on the
OTP to steer national processes towards more investigations and
prosecutions. Although such encouragement is influential,12 it runs the risk
of becoming a paper exercise if there is no strong national framework in
place enabling States to exercise criminal jurisdiction. It was clear, even
prior to shaping the agenda for the Review Conference, that if positive
complementarity was to succeed, a more systematic approach towards
empowering national legal orders was needed.

8
Statement made by the Luis Moreno-Ocampo, Chief Prosecutor, Ceremony for the
solemn undertaking of the Chief Prosecutor of the International Criminal Court, 16
June 2003, The Hague.
9
ICC-Office of the Prosecutor, Report on Prosecutorial Strategy (2006).
10
For the general discussion on positive complementarity approach see: W. W. Burke-
White, ‘Proactive Complementarity: The International Criminal Court and National
Courts in the Rome System of International Justice’, 49 Harvard International Law
Journal (2008), 53; W. W. Burke-White, ‘Implementing a Policy of Positive
Complementarity in the Rome System of Justice’, 19 Criminal Law Forum (2008) 1,
59.
11
Supra note 9, 5.
12
W. W. Burke-White, supra note 11, 71.
 Capacity Building and the ICC’s Legal Tools 797

B. Developments Relating to Complementarity During

the Stocktaking Exercise
Throughout the lead up to the Review Conference and the stocktaking
exercise, the importance of the principle of complementarity was re-
affirmed. However, the main emphasis was on the construction of national
capacity. The difficulties that States had faced in fulfilling their role under
the ICC’s complementarity regime gave new impetus to the pursuit of
positive complementarity. The next sections will highlight how the term
“positive complementarity” which began as a prosecutorial policy came to
be recognized by State Parties as a vital means of strengthening the ICC’s
regime.

I. The Background to the Review Conference

The foundations for the Review Conference discussion on
complementarity can be found in the 8th Session of the Assembly of States
Parties to the Rome Statute (ASP) in November 2009.13 The States Parties
to the Rome Statute approved complementarity as one of the four themes for
consideration as part of the stocktaking exercise.14 In the following months,
the Bureau of the ASP became actively involved in shaping the format and
content of the negotiations that were due to take place in Kampala. A
Resumed 8th Session of the ASP was held in New York in March 2010,
during which the Bureau presented a report entitled “Taking stock of the
principle of complementarity: bridging the impunity gap”, which was
appended to the Resolution on the Review Conference.15 The paper
emphasized the integral nature of the principle of complementarity to the
functioning of the ICC’s system of justice and the long term efficacy of the

13
See, Strengthening the International Criminal Court and the Assembly of States
Parties, ICC-ASP/8/Res.3, adopted at the 8th plenary meeting, on 26 November 2009,
by consensus. Paragraph 6 of the resolution reads: ”Encourages States Parties to
further discuss issues related to the principle of complementarity and to explore
proposals by States Parties introduced as ‘positive complementarity’”, available at:
http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/ICC-ASP-8-Res.3-ENG.pdf (last
visited 27 August 2010). See also a discussion paper submitted by Denmark and South
Africa at the 8th ASP, entitled: ‘Bridging the Impunity Gap through Positive
Complementarity’, 6 November 2009.
14
Id., supra note 3, Annex IV, “Topics for stocktaking”.
15
Review Conference, Resolution ICC-ASP/8/Res.9, adopted at the 10th plenary
meeting, on 25 March 2010, by consensus, Appendix.
798 GoJIL 2 (2010) 2, 791-811

Court.16 However, the clear emphasis of the paper was positive

complementarity.
In the paper, “positive complementarity” was defined as

“all activities/actions whereby national jurisdictions are strengthened

and enabled to conduct genuine national investigations and trials of
crimes included in the Rome Statute, without involving the Court in
capacity building, financial support and technical assistance, but
instead leaving these actions and activities for States, to assist each
other on a voluntary basis”.17

The paper discussed various issues relating to the notion. Firstly, it

identified three categories of support; namely, legislative assistance,
technical assistance and capacity building.18 Secondly, it discussed different
“scenarios” in which assistance could be provided; before, during and after
situations arise, where the Court is investigating and prosecuting and where
it is not.19 Thirdly, and most significantly, the paper considered the actors
involved in positive complementarity.20 It highlighted the limited role that
the ICC should play in positive complementarity, as a result of its judicial
mandate and limited budget which should remain directed at the Court’s
primary function in investigating and prosecuting the crimes under its
jurisdiction.21 The paper clearly stated that the “Court is not a development
agency”.22 Instead, the focus was shifted to States and civil society and the
ways in which they could encourage and assist national institutions to fulfil
their role under the Rome Statute. The report included as an aim for the
stocktaking exercise the identification of ways in which State Parties,
assisted by civil society, and in dialogue with the Court, may “even better,
more targeted and more efficiently assist one another in strengthening
national jurisdictions in order that these may conduct national investigations
and prosecutions”.23

16
Id., para. 4.
17
Id., para. 16.
18
Id., para. 17.
19
Id., paras 19-26.
20
Id., paras 27-45.
21
Id., para. 4.
22
Id., para. 4.
23
Id., para. 51.
 Capacity Building and the ICC’s Legal Tools 799

Denmark and South Africa, the two States which had been identified
as focal points for the stocktaking on complementarity, also compiled a
paper ahead of the Review Conference.24 The paper, entitled “Focal points’
compilation of examples of projects aimed at strengthening domestic
jurisdictions to deal with Rome Statute Crimes”, outlined a number of
examples of projects which had already been established and developed to
enhance the capacity and willingness of States to fulfil their role in the
ICC’s complementarity regime.
The report of the Bureau made positive complementarity a central
aspect of the stocktaking exercise. Not only did the preparations for
Kampala reflect a new emphasis on positive complementarity, they also
seem to represent a change in the use of the term. Whereas the term
“positive complementarity” had previously been used by the OTP to refer to
the involvement of the Court in the construction of national capacity,25 the
focus of the report of the Bureau had shifted to the involvement of States
and civil society in capacity building activities. Although the paper in itself
had no legally binding effect, its structure and content influenced the debate
that took place in Kampala and the resolution that was adopted with respect
to complementarity at the end of the Review Conference.

II. Stocktaking in Kampala

The formal stocktaking exercise on complementarity took place on the
fourth day of the Review Conference.26 The exercise was organised by
Denmark and South Africa, the focal points for complementarity, who had
played an integral role in the preparations for the stocktaking exercise. In
addition to the formal stocktaking exercise, several informal side events
were organised throughout the Review Conference to allow States Parties,
civil society and other delegates to engage in further discussion both prior to
and following the time allocated on the official agenda.27

24
RC/ST/CM/INF.2 Focal points’ compilation of examples of projects aimed at
strengthening domestic jurisdictions to deal with Rome Statute Crimes, 30 May 2010.
25
Supra section 1.
26
The plenary took place on Thursday 3 June 2010. Held in a panel format, with
contributions from the floor; the plenary of the stocktaking on complementarity
largely reflected the content of the discussion paper prepared by the Bureau.
27
See for instance an informal event on complementarity, organized by the Coalition for
the International Criminal Court (CICC) in advance of the plenary session, held on 1
June 2010. A further panel discussion on complementarity was hosted by South Africa
and the Denmark, the focal points for complementarity on 2 June 2010. In addition, a
800 GoJIL 2 (2010) 2, 791-811

The template that had been outlined by the Bureau of the ASP
provided a framework for the formal stocktaking event. It listed, as a
tentative programme of work, the elaboration of the principle of
complementarity, the practical application of complementarity and the
Rome Statute system, positive complementarity, what it is and why it is
necessary, and practical implementation of positive complementarity, or the
enabling of national jurisdictions.28 These themes were also discussed in the
informal meetings that took place outside of the plenary.
At the plenary, States and panellists highlighted the centrality of the
principle of complementarity to the ICC’s regime and the importance of
States fulfilling their role under the Rome Statute by investigating and
prosecuting crimes committed on their territory or by their nationals.29
Specific attention was drawn on the significance of the principle of
complementarity in bringing justice closer to victims and affected
communities. The visibility of justice has been thought to play a central role
in increasing its legitimacy in the affected community and therefore the
restorative impact of the trial process.30 The investigation and prosecution of
serious international crimes by national courts may allow more victims and
members of the local community to attend hearings and facilitate
communication of the occurrence and significance of the proceedings to
local populations. The ability to participate in proceedings, which is more
likely when justice takes place closer to the affected population, has also
been thought to increase the cathartic effect of criminal trials amongst the
victim population.31 Furthermore, the investigation and prosecution of
international crimes in national institutions increases the likelihood that
local personnel will play an integral role in the proceedings. The
involvement of local personnel may result in more effective communication
of the purpose and value of the trial process than that which could be
achieved by staff who are unfamiliar with local languages and cultural
practices.32 The practical advantages of national justice were also

side event was hosted by the Democratic Republic of the Congo, the United States and
Norway on “The DRC and Positive Complementarity”, also on 2 June 2010.
28
Review Conference, Resolution ICC-ASP/8/Res.9, adopted at the 10th plenary
meeting, on 25 March 2010 by consensus.
29
In accordance with Article 12 of the Rome Statute.
30
M. Drumbl, Atrocity, Punishment and International Law (2007), 148.
31
C. L. Sriram, ‘Revolutions in Accountability: New Approaches to Past Abuses’ 19
American University International Law Review (2003) 2, 301, 383-384.
32
Justice mechanisms located within post-conflict societies have been considered ‘better
able to demonstrate the importance of accountability and fair justice to local
populations’, see J. E. Stromseth, ‘Pursuing Accountability for Atrocities After
 Capacity Building and the ICC’s Legal Tools 801

highlighted during the course of the discussions.33 Like other international

tribunals, the ICC is reliant on the cooperation of States to collect and
transfer evidence as well as suspects and accused persons to the Court.34
Even where States are cooperative, in line with their obligations under the
Rome Statute,35 the distance of the Court from the territories in which
crimes may have occurred is likely to cause delays or obstacles to the
pursuit of justice. Where justice is carried out at the national level, access to
evidence, witnesses and perpetrators is likely to be easier, and thus facilitate
the process of holding perpetrators to account for their crimes.
With regard to the practical application of positive complementarity,
the discussions served to highlight the difficulties that States had faced in
undertaking the investigation and prosecution of core international crimes.36
Three main challenges facing the application of complementarity in practice
were raised during the stocktaking exercise. The first is the lack or
inadequacy of national implementing legislation.37 Having legislation in
place is the first step in putting an end to impunity for atrocities and
constitutes a means of materialising the application of complementarity.
Linked to this point was the discussion on whether it would be desirable to
prosecute core international crimes as ordinary crimes. At a panel meeting
on complementarity which was organised by CICC, it was felt that
prosecuting core crimes such as murder or rape, rather than their
international equivalents, is not desirable since ordinary crimes do not
represent the scope, scale and gravity of the conduct.38 A second problem
concerns the lack of operational capacity. In particular, the problems faced
by domestic institutions operating in the context of a weak economy, lack of
infrastructure, lack of confidence in the judicial structure and disputed
authority were highlighted at the Danish and South African panel on
complementarity.39 Such operational capacity problems are likely to be
exacerbated particularly where there may be a large backlog of cases, which

Conflict: What Impact on Binding the Rule of Law’, 38 Georgetown Journal of

International Law (2007) 2, 251, 260.
33
Panel discussion on complementarity hosted by South Africa and Denmark, supra
n.28.
34
Rome Statute, Art. 86: “States are obliged to provide for the various forms of co-
operation outlined in Parts IX and X of the Rome Statute”.
35
Id.
36
Plenary, supra note. 28
37
Id.
38
Id.,
39
Panel discussion on complementarity hosted by South Africa and Denmark, supra
note 28.
802 GoJIL 2 (2010) 2, 791-811

is usually the case in the aftermath of mass atrocity where criminal justice
institutions with restricted resources or expertise normally have limited
capacity to process cases. Linked to this point is the lack of training, the
third challenge identified by the plenary at the stocktaking exercise. Whilst
the need for specific training was identified, the panellists at the South
Africa - Denmark event reflected on the importance of the design of the
training in empowering national judicial systems to oversee justice at the
national level.40
The meaning of the term “positive complementarity” was discussed
during the plenary. Whilst repeated reference was made to the term, some
States questioned its use, preferring the term “technical assistance”.41 It was
highlighted that the term had no basis in the Rome Statute and served to
confuse judicial capacity building with the principle of complementarity as
laid down in Article 17 of the Rome Statute.42 Despite some hesitation of
the use of the term “positive complementarity”, there was general agreement
during all meetings that the active involvement of States and civil society in
building national capacity is desirable. Furthermore, doubts as to the use of
the term “positive complementarity” may have been outweighed by the
frequency with which the term was used.
A significant proportion of the discussion in all events on
complementarity was focused on the ways in which national capacity could
be increased so as to strengthen the ICC’s overall system of justice. It was
highlighted that the role of the Court in positive complementarity should be
limited so as to ensure that the construction of national capacity would not
interfere with the ICC’s judicial function or divert funds from investigations
and prosecutions being carried out by the Court.43 There was general
agreement that States, international organizations and civil society should
play a leading role in encouraging and assisting States to enact national
implementing legislation and to investigate serious international crimes
committed on their territory or by their nationals.44 Efforts were made to
identify tangible means of increasing national capacity. Several projects

40
Id.
41
This issue was raised by the Spanish delegation during the plenary session, supra note
28.
42
This point was made by the German delegation during the plenary session, id.
43
This point was emphasized in the CICC side event on complementarity, supra note
27.
44
At the CICC side event, proposals were made for the Assembly of States Parties to
play a role in overseeing and linking different activities aimed at the construction of
national capacity so as to streamline activities and reduce duplication of tasks.
 Capacity Building and the ICC’s Legal Tools 803

tailored to the construction of national capacity were highlighted during the

plenary session.45 In addition, the role of the United States in projects to
strengthen judicial processes in the Democratic Republic of the Congo
(DRC) was discussed in the US - Norway sponsored side event on positive
complementarity and the DRC.46
The stocktaking exercise served to reaffirm the importance of the
principle of complementarity but, at the same time, recognised the
difficulties faced by States in carrying out investigations and prosecutions of
the crimes under the Court’s jurisdiction at the national level. Whilst there
was some hesitation over the use of the term “positive complementarity”,
there was general agreement that States needed assistance in fulfilling their
role as reflected in the Rome Statute and that States and civil society should
take a leading role in building national capacity.

III. The Outcome of the Stocktaking Exercise

The outcome of the stocktaking exercise was a resolution which
reflects the contribution of the Bureau of the ASP in its report on
stocktaking, as well as the content of the debates that took place in
Kampala. The resolution stresses the primary responsibility of States to
investigate and prosecute the crimes under the jurisdiction of the
International Criminal Court.47 It also notes the importance of States Parties
“taking effective domestic measures to implement the Rome Statute”.48 In
doing so, it serves to reaffirm the commitment of States to the principle of
complementarity that forms the foundation for the ICC’s system of justice.
The resolution recognises the need for “additional measures at the national
level as required and for the enhancement of international assistance to
effectively prosecute perpetrators of the most serious crimes of concern to
the international community” and encourages the Court, State Parties and
other stakeholders, including international organisations and civil society

45
Reference was made to the ICC Legal Tools Project as a means of contributing to
national jurisdictions by the delegation of Norway during the plenary debate. During
the plenary session, the Netherlands highlighted the Justice Rapid Response Initiative
as well as the ICC’s Legal Tools. Both projects had been included in the “Focal
points’ compilation of examples of projects aimed at strengthening domestic
jurisdictions to deal with Rome Statute Crimes”, see supra note 24.
46
See supra note 28.
47
Resolution RC/Res.1, adopted at the 9th plenary meeting, on 8 June 2010, by
consensus, para. 1.
48
Id., para. 4.
804 GoJIL 2 (2010) 2, 791-811

“to further explore ways in which to enhance the capacity of national

jurisdictions”.49 Whilst the resolution does not make explicit reference to the
term “positive complementarity”, it acknowledges the activities referred to
in terms of positive complementarity during the stocktaking exercise.
The resolution, adopted by consensus of the Assembly, does not
introduce any new legal obligations. It does, however, serve to recognise
and emphasize the importance of the principle of complementarity and
engagement in initiatives to boost national capacity so as to ensure that
States are able to apply international criminal law at the national level. In
future, it is hoped that the resolution will translate into concrete initiatives
which will serve to strengthen the Court’s system of justice and help it work
towards ending impunity for international crimes.

C. The ICC’s Legal Tools

The Legal Tools Project was identified in the lead up to the Review
Conference by the Focal Points for complementarity as an example of a
project directed towards strengthening national jurisdictions and enabling
them to address core international crimes.50 Moreover, the importance of
projects such as the ICC’s Legal Tools Project, were highlighted during the
general debate and the stocktaking exercise of the Review Conference.51
The ICC’s Legal Tools offer a comprehensive online or electronic
knowledge system and provide an expansive library of legal documents and
range of research and reference tools. The Tools were developed with the
aim of encouraging and facilitating the efficient and precise practice of
criminal justice for core international crimes. Whilst the Tools were initially
created and envisaged for use within the Court, realisation of their value as a
means of increasing national capacity led to their development for use by a
range of external actors. As the Project expanded, the further development
of the Legal Tools was outsourced to a number of academic partners (the
“Legal Tools Outsourcing Partners”) with specific expertise in the field,52
whose activities are overseen by practitioners and experts in the field,

49
Id., paras 3 and 8.
50
See the practical examples illustrating how several actors could assist States in
enhancing national capacity with regard to the investigation and prosecution of serious
international crimes, with a view to stimulating debate in Kampala, compiled by the
Focal Points, supra note. 28.
51
See supra note 45.
52
See http://www.legal-tools.org/en/work-on-the-tools/ (last visited 27 August 2010)
 Capacity Building and the ICC’s Legal Tools 805

including the Legal Tools Advisory Committee of the ICC, with

representation from the different Organs of the Court, as well as a Legal
Tools Expert Advisory Group with some of the leading legal informatics
experts serving as members.
The Legal Tools Project includes three main clusters of services, (i)
the Legal Tools Database and Website,53 (ii) digests on the law and
evidence of international crimes and modes of liability, and (iii) the Case
Matrix application for organising and structuring evidence in core
international crimes cases.
The Legal Tools Database and Website provide a free, publicly
accessible platform for the dissemination of legal information relating to the
investigation, prosecution, defence and adjudication of serious international
crimes. The Database contains over 44,000 documents, including decisions
and indictments from all international and internationalised criminal
tribunals, preparatory works of the ICC, jurisprudence and decisions from
the ICC, treaties, information about national legal systems and relevant
decisions from national courts, which are fully searchable using a state of
the art search engine. The Legal Tools Database also contains a specific
search engine which allows users to search specific aspects of national
legislation implementing the Rome Statute.
The Elements Digest provides raw data and notes on the elements of
crimes as well as the modes of liability contained in the Rome Statute and
Elements of Crimes document. The text is drawn from all sources of
international law. Relevant sources will be hyperlinked in the Digest to
allow users direct access to primary material. The Means of Proof Digest
allows users to see the types or categories of evidence that have been used
in national and international criminal jurisdictions to satisfy the elements of
crimes and modes of liability contained in the Rome Statute. The two
Digests can be accessed through the Case Matrix. They do not represent the
views of the ICC, its Organs or any participants in proceedings before the
Court.
The Case Matrix is a law-driven case management and legal
information application developed for the efficient and precise investigation,
prosecution, defence and adjudication of international crimes. The Case
Matrix allows users to access documents selected from the Legal Tools
Database (the “Legal texts” function) as well as access to the Elements and
Means of Proof Digests. The application also serves as a database for the

53
See http://www.legal-tools.org (last visited 27 August 2010).
806 GoJIL 2 (2010) 2, 791-811

organisation of information and evidence relating to core international

crimes, tailored to the specific crimes that have been committed and
relevant modes of liability. It can also be adapted for use by different actors
involved in the processing of core international crimes, such as human
rights personnel, investigators, prosecutors, defence teams, victims’
representatives, judges and civil society.

D. The Legal Tools and Positive Complementarity

Access to legal information is the bread and butter of lawyers.
Without adequate access to legal information lawyers can not write proper
legal motions, arguments and decisions. It is not enough to have talented
and well-educated lawyers and investigators. Providing effective access to
legal information on war crimes, crimes against humanity and genocide is
therefore one of the first steps in all capacity building in criminal justice for
such crimes. If the access is expensive, it can not be effective insofar as
many potential users are excluded.
The Legal Tools seek to provide basic legal information with respect
to core international crimes. The Tools are not a mere aspiration. Rather,
they are in place and they have been developed and are maintained in a
sustainable manner. Additionally, the related Case Matrix Network54
provides capacity building activities which enhance positive
complementarity in more than twenty countries, drawing, inter alia, on the
technical platform of the Legal Tools. The Network seeks to reach all
countries which have recently had or are currently engaging in core
international crimes cases by mid-2012.55
The Case Matrix Network provides several layers of services
including those presented in the following three sections.

I. Access to Legal Information Relating to Serious

International Crimes
The Legal Tools provide free and easy access to legal information
relevant to core international crimes. The wide range of resources contained
in the Legal Tools Database, which can be easily accessed through the
search or browse functions on the Legal Tools Website, is of potential value

54
See www.casematrixnetwork.org (last visited 27 August 2010).
55
See http://www.casematrixnetwork.org/users/ (last visited 27 August 2010).
 Capacity Building and the ICC’s Legal Tools 807

for any lawyer or institution operating in the field of international criminal

law. Such resources may not be of existential value for legal actors who
have access to a wealth of legal materials and expertise. Such actors
constitute a small minority. The resources in countries that have suffered the
commission of mass atrocities may be particularly limited. In the aftermath
of international crimes, there may not be the budget to build up resources
necessary to hold perpetrators to account for their crimes.
The availability of the Legal Tools serves to level the playing field in
the investigation, prosecution, defence and adjudication of core international
crimes, allowing national judicial institutions to process international crimes
involving their nationals or committed on their territory that may otherwise
have lacked the means to do so. National institutions working on one or
more core international crimes cases which do not have access to the
Internet can access relevant information from the Legal Tools Database via
the Case Matrix. In offering universal access to relevant information in the
field of international criminal law, the Legal Tools can make a significant
contribution to local empowerment, the importance of which had been
stressed throughout the stocktaking exercise in Kampala.
The resources included in the Legal Tools Database and Website
assist not only in the investigation, prosecution, defence and adjudication of
core international crimes, but also in the drafting and amendment of
implementing legislation. The specific search engine for national
implementing legislation (NILD) allows States to compare approaches that
have been taken in different jurisdictions and to model their legislation on
that of States with similar characteristics, for example those sharing the
same legal tradition. NILD also highlights the approaches which are likely
to facilitate States in fulfilling their role under the ICC’s complementarity
regime and those which might be narrower than what is required, thus
falling short of the Statute.
The resources found in the Legal Tools have value not only for the
States that would normally exercise jurisdiction over crimes following
territoriality or nationality. They can also be used by States wishing to
investigate and prosecute serious international crimes through the exercise
of universal jurisdiction. Furthermore, they can be used by States,
international organisations and civil society wishing to place political
pressure on States to discharge their obligations under the Rome Statute.
The Legal Tools can also be used by civil society working in the
documentation of human rights violations amounting to core international
crimes and which may lead to the investigation and prosecution of
international crimes.
808 GoJIL 2 (2010) 2, 791-811

In sum, the Legal Tools provide a complete library of materials

relating to the practice of international criminal law. The materials provided
by the Legal Tools are likely to have value for fully-functioning national
judicial institutions. However, their significance is of particular importance
within States which have access to fewer resources. Use of the information
contained within the Legal Tools may allow States that would not have been
able to engage in investigations and prosecutions to fulfil the role that has
been attributed to them by the principle of complementarity under Article 17
of the Rome Statute.

II. Facilitating Transfer of Legal Knowledge and Expertise

International criminal jurisdictions have not only produced a wealth of
legal documents since the mid-1990s. They have also contributed to the
development of detailed knowledge and expertise in international criminal
law. Making these resources available to national legal actors is essential.
The ICC’s Legal Tools have been designed and developed by
practitioners and experts with over fifteen years of experience in the practice
of criminal justice for atrocities. The Tools serve as a means of transferring
this experience to national criminal justice institutions in a manner which is
practical and user friendly, respectful of local legal traditions and according
to the logic of the law.
The Case Matrix application offers a low cost and instant means of
increasing the capacity of national legal actors. It offers a comprehensive
system which can be integrated within existing infrastructure and used by
domestic personnel without the need for lengthy training or international
oversight. Furthermore, following the installation of the Case Matrix, the
application remains within the national judicial system, ensuring that the
State in question will be ready to respond to possible future conduct that
may form the basis of investigations and prosecutions. The fact that the
Case Matrix can be incorporated into existing legal structures and operated
by local personnel increases its value as a mechanism for local
empowerment.
Once installed, national legal actors have ready access to the
necessary resources and an effective methodology to conduct investigations,
prosecutions, defence and adjudication of international crimes. Users will
have access to the Elements and Means of Proof Digests which incorporate
knowledge and experience derived from theory and practice in a format that
can be easily accessed and imparted into national judicial institutions. The
 Capacity Building and the ICC’s Legal Tools 809

Digests not only provide valuable guidance for legal actors who are not
familiar with the processing of international crimes; they can also encourage
compliance with international standards and practices by providing a model
for national jurisdictions.
The case management application contained within the Case Matrix
provides a methodology for the oversight of serious international crimes
cases. The application has been designed by practitioners with considerable
experience in criminal justice for atrocities with the intention of increasing
the efficiency and precision of the justice process. The application allows
for the efficient organisation of evidence by reference to the elements of
crimes and modes of liability being charged. In doing so, it facilitates
effective case assessment by indicating which charges are supported by
sufficient evidence to allow for prosecution and potential conviction. It also
allows for the development of more effective prosecutorial strategies and
the focusing of time and resources on the weak points of strong cases.
Furthermore, it reduces the potential for duplication of work by providing a
platform for sharing and transferring information between teams and
amongst different elements of the criminal justice system. The efficiency
and precision of the criminal justice process, which is encouraged by the use
of the Case Matrix, is particularly important for national institutions
working on a limited budget, especially where there is a large backlog of
serious crimes cases. The application can be customised to suit the needs of
particular institutions. This allows national capacity to be constructed in a
manner which is sensitive to cultural differences.
The ICC’s Legal Tools amount to a technical platform which can be
used as a means of transferring the expertise that has amassed at the
international level and feed it into national institutions, particularly those
lacking resources and expertise in the field of international law. The
provision of resources and a methodology for the processing of core
international crimes cases may assist States in overcoming some of the
challenges they face in such activities in a manner which is fast, cost-
efficient, respectful of local traditions and capable of being sustained in
future years.

III. Provision of Legal Skills in the Field of Criminal Justice for

Atrocities
Alongside the expansion and development of the ICC’s Legal Tools, a
network of experts and practitioners in the field of criminal justice for
atrocities has been established to assist with installation of the Case Matrix
810 GoJIL 2 (2010) 2, 791-811

and training in the use of the Legal Tools, in addition to a range of other
capacity building services. The Case Matrix Network was created with the
specific purpose of strengthening national ability to investigate, prosecute
and adjudicate core international crimes and to increase the cost-efficiency
and quality of justice delivered by national institutions,56 by transferring
skills linked to key work processes in criminal justice for atrocities. The
Case Matrix Network offers two categories of services.57 The first category
of services relates to the installation and use of the Case Matrix and the
training and use of the Legal Tools Database. Some members of the
Network assist the Coordinator of the Legal Tools Project with the
implementation of such services. The second category draws on the
combined expertise of a team of Network Advisers and the Director of the
Case Matrix Network with regard to the investigation, prosecution, defence
and adjudication of core international crimes. The Network Advisers have
amassed considerable expertise in the processing of serious international
crimes, as well as in the legislative and administrative aspects of the
process.
The Network Advisers can provide a wide range of services upon
request by national criminal justice institutions. The range of services
includes advice on the establishment and organisation of units for the
investigation and prosecution of serious international crimes; advice on or
organisation of work processes relating to the documentation, investigation,
prosecution, adjudication or defence of core international crimes cases; and
advice on the drafting and review of legislation and other legal documents
relating to serious international crimes. The services can be offered remotely
or in situ, on an ad hoc basis or through secondment and can be provided
confidentially.
Through the provision of such services, the Case Matrix Network
allows expertise developed in international criminal jurisdictions to be
quickly and easily utilised by national legal actors. In doing so, it can
contribute to national empowerment by ensuring that national institutions
have the capacity to carry out their vital role in the fight against impunity.

56
See http://www.casematrixnetwork.org/purpose/ (last visited 27 August 2010).
57
See http://www.casematrixnetwork.org/services/ (last visited 27 August 2010).
 Capacity Building and the ICC’s Legal Tools 811

E. Conclusion
The ICC’s Legal Tools, together with the Case Matrix Network,
provide an effective means of overcoming several of the problems faced by
States in the pursuit of justice which were raised throughout the stocktaking
exercise. The resources contained in the Legal Tools Database can be used
to assist States in accessing legal information, including the drafting of
legislation implementing the crimes under the jurisdiction of the Court into
national law. Use of the Legal Tools can strengthen national institutions and
increase their capacity to investigate and prosecute core international
crimes. The resources available through the Case Matrix can facilitate the
documentation, investigation, prosecution, defence and adjudication of
serious international crimes. The logic and methodology provided by the
Case Matrix allow knowledge and experience accumulated through the
practice of international criminal jurisdictions to be transferred to national
institutions in a fast and cost-effective manner which is empowering and
respectful of local traditions. The separate services offered by the Case
Matrix Network provide a further source of assistance for legal actors
engaged in the application of international criminal law.
To conclude, the ICC’s Legal Tools and the Case Matrix Network
offer an effective way of building the capacity of legal actors to investigate,
prosecute and adjudicate international crimes. In doing so, they contribute to
strengthening the ICC’s complementarity system in the manner envisaged
by the stocktaking exercise at the ICC Review Conference. The debates in
Kampala suggest a growing tendency to refer to this kind of assistance as
“positive complementarity”. Regardless of the terminology that was used
during the Review Conference, the stocktaking exercise served to highlight
the importance of projects such as the ICC’s Legal Tools Project in
contributing to the ICC’s complementarity regime.