In the Court’s Shadow
Writing Selectivity in the ICC’s Procedures
The practice of international criminal law is essentially a series of compromises. Despite the purported universalist goals of international criminal law and its institutions, its exercise inevitably remains trapped by geopolitical limitations. Patryk Labuda’s book, International Criminal Tribunals and Domestic Accountability In the Court’s Shadow, thoughtfully unpacks the compromises made to reconcile the opposing demands of sovereignty and international intervention to prevent impunity for atrocity crimes. The book speaks to the popular assumption that International Criminal Tribunals (ICTs) play an important role in galvanizing and promoting domestic prosecutions. Examining the relationship between ICTs and states through the lens of (positive) complementarity, Labuda’s book weighs in on the cosmopolitan nature of the implementation of international criminal law.
Labuda’s argument is premised on the idea that international criminal law has gone through a paradigmatic shift that distrust of states does not underline the need of ICTs any longer, but instead the future of international criminal law is domestic. That ICTs are secondary to the states, primarily designed to complement and support the work of national prosecutions – but through their practice they ‘cast a shadow’ over the states. In response, this book challenges the strict binary between ‘primacy’ and ‘complementarity’ and urges a rethinking of romanticization of domestic trials as the preferred site of implementation of international criminal law, as in some cases it may strengthen authoritarian elite at the expense of affected populations’ aspirations for emancipatory justice (p. 10).
Interpretation and Application of Complementarity
Of the three very informative and thought-provoking case studies, I will particularly focus on the case study on ICC for this blogpost, and I found the following aspects particularly interesting as takeaways:
One, while discussing the case law of Article 17 of the ICC Statute, Labuda highlights how the ICC judges have unilaterally manipulated the language of Article 17 in a manner that reflects an intentional abstention from making case selection about ‘unwillingness’ or ‘inability’ but rather about ‘inactivity’. Such interpretative techniques to avoid conflict may have been used to deflect responsibility and avoid ascribing the stigma of ‘inability’ on to the states in question. Moreover, the jurisprudence of Article 17 has been carefully shifted by the ICC judges from state behaviour to the ‘same case doctrine’. This results in the fact that complementarity assessment avoids any evaluation of state behaviour on account on inability, unwillingness or genuineness. Such seemingly neutral approach to politically sensitive cases might stand to enhance state cooperation and allow international trials to proceed with fewer obstacles, but Patryk argues, that it has produced a short-term opportunistic case selection and an imbalanced case docket, with international cases limited to deposed state or non-state actors (p. 84).
Two, the book’s analysis of the ICC Office of the Prosecutor (OTP ) policy and complementarity in action over the last two decades drives home the point how most of the case selection by the OTP may have been a result of short-term opportunism rather than a long-term anti-impunity strategy, despite assurances to the contrary (p. 128). Successive prosecutors, often acting as diplomats, have consistently adopted an overtly deferential approach towards the states. Labuda observes that during former ICC Prosecutor Bensouda’s term, when the site of complementarity shifted from the investigation phase to the preliminary examination stage, the OTP was engaging with state authorities over alleged crimes and evaluated the prospects of a purely domestic accountability response that would obviate the need for an ICC investigation (p. 269-70). Even this strategy failed to galvanize state action, and on the contrary, led to delays. The only case where a state managed to actually obviate the need for further investigation was in the situation of UK-Iraq, the UK was able to convince the OTP that there was no need for international intervention even without a single trial taking place in the country.
Both these aspects – the case law and the prosecutorial policy on complementarity – substantiate why compromises made in what can perhaps be generously referred to as the ICC’s survival mode have led to a practice that essentially ensures that cases against powerful states – with a strong rule of law framework – will not be admissible before the courts. In that vein, this practice further embeds the bias against countries whose legal systems do not subscribe to the western model of ‘rule of law’. Labuda’s analysis adds another tool in the toolbox of arguments that highlight and challenge selectivity that seems inherent in the structures of the international criminal justice system.
Centring (A Few) States
An overarching point that underlines this discussion in the book is how such a romanticised trend of domestic prosecutions has made the implementation of international criminal law more state-centric. It might not be clear to what extent the ICTs and the ICC have incentivised domestic prosecutions in the states where the crimes were committed (p. 264). But quite evidently, the domestication of the ICC Statute and the interpretation of (positive) complementarity has led to a proliferation of universal jurisdiction-based litigation, almost exclusively in the Western countries prosecuting mid to low-level perpetrators whose prosecutions are unlikely to attract political backlash for the states exercising universal jurisdiction. Such universal jurisdiction prosecutions emulate the imbalanced and skewed geopolitical dynamics into the realm of international criminal justice and lead to an enhanced power in the hands of the nation-state, and particularly the Western states. The states’ foreign-policy informed approach to domestic universal jurisdiction prosecutions continues to lead to the same outcome – impunity of the most powerful actors – and defeats the universalist goals of international criminal law.
Mobilisation of the Framework by NGOs
One last point that I find worth mentioning is Labuda’s take on the impact of positive complementarity on the role played by non-state actors. Through the case studies, he observes NGOs who have mobilized the language of complementarity to enact reforms as disparate as implementing legislation and infrastructure revitalization (p. 263). Such actions have resulted in norm-internalization even in cases where the ICC is not active or even non-member states. While these case studies deal with mobilisation aimed at ensuring better and stronger implementation of international criminal law, as I analyse in my recent book, some cases of domestic prosecutions have also used the vocabulary of international criminal law to challenge powerful actors and address structural causes that perpetuate and fuel international crimes.
This book is important for several reasons, some of which will be certainly explored in other posts in this symposium. It is a significant contribution to the scholarship on international criminal law as it presents a nuanced analysis on the relationship between ICTs and domestic prosecutions through the lens of (positive) complementarity as well as proposes concrete solutions for its future practice. The book should be an important contextual reading for anyone engaged with international criminal law, wherever they fall on the spectrum from skeptical critic to fervent advocate.