Not All Shadows Are Created Equal

A pronounced turn toward domestic prosecutions of serious crimes committed in violation of international law is highlighted by Patryk I. Labuda in his new book International Criminal Tribunals and Domestic Accountability: In the Court’s Shadow. While the trend is well recognized, writes Labuda, the different ways international tribunals have positively impacted domestic accountability have “confounded expectations.” (Labuda, pgs. 8-10; 142.)

According to Labuda, the International Criminal Court (ICC) has not been a panacea for domestic accountability efforts even though it operates as a court of last resort that will only intervene when domestic authorities are unwilling or unable. This approach is addressed in articles 17-19 of the ICC’s Rome Statute and is known as the principle of complementarity. (Labuda, pgs. 71-73.)

Meanwhile, earlier international tribunals that operated with primacy, whereby they controlled which cases to pursue, were not a death knell to domestic accountability initiatives, as one might expect. Labuda examines, for example, how domestic judicial proceedings in Rwanda were conducted more fairly as a result of interaction between domestic authorities and the International Criminal Tribunal for Rwanda. (Labuda, pgs. 212-18.)

But a unique contribution the ICC has had in some instances regarding domestic accountability—contributing to prompting judicial proceedings to occur at all, as opposed to only affecting how they are conducted—is given short shrift by Labuda. Experience has shown the difficulties of mobilizing the holding of trials for serious crimes, especially involving high-level suspects, and this reinforces the distinct significance of the ICC’s ability to help prompt proceedings to take place. In this way, not all “shadows” cast by international courts are comparable (Labuda, pg. 90); some shadows loom larger than others.

Case Study: Guinea

A striking example of the ways in which the ICC has been able to help generate momentum for the holding of domestic judicial proceedings on serious crimes is the situation in Guinea.

Fourteen years ago, on September 28, 2009 in the morning, Guinean security forces opened fire on tens of thousands of opposition supporters peacefully protesting in a stadium in the country’s capital, Conakry. By late afternoon, at least 150 Guineans lay dead or dying in and around the stadium complex. Dozens of women at the rally suffered brutal sexual violence at the hands of security forces, including rape and sexual assault with objects such as sticks, batons, rifle butts, and bayonets. Following the violence, security forces organized a cover-up during which bodies were buried in mass graves.

Then ICC prosecutor Fatou Bensouda made clear within weeks that her office would consider whether to open an investigation. Guinea would need to investigate and prosecute the crimes to avoid such action; Guinean authorities quickly signaled their intention to do so.

The ICC Office of the Prosecutor’s (OTP) office then played a pivotal role in spurring the trial—operating in parallel to other actors, including international partners, UN representatives, and survivors and human rights groups—by monitoring progress, interacting with Guinean authorities, and giving specific, public reminders that an ICC investigation would go ahead in the absence of justice at the local level. The office also reported annually on its preliminary examinations, providing an essential public reference point, a practice discontinued in 2021, but one which we believe the office should urgently revisit.

The Potential to Spur Proceedings Casts a Distinctive “Shadow”

Labuda argues that the trend toward complementarity “may have prompted more fundamental distortions in international criminal justice…especially at the national level, where state-initiated prosecution of serious crimes serve to consolidate the authority of elites and exacerbate transitional regimes’ authoritarian tendencies. Driven by the incentives and rhetoric of complementarity, international actors strengthen prosecution services and courts, but are unable to challenge the executive branch which condones impunity for some people and some crimes.” (Labuda, pg. 10.) He goes on to unpack this analysis by drawing from the ICC’s investigation in the situation in the Democratic Republic of Congo (Labuda, pp 125-142).

But it is important to contextualize these observations. The reality has been that prosecutions for serious crimes involving higher-level accused in domestic courts have been rare, including because trials of higher-level suspects for serious crimes are often sensitive and complex. This is true even where those in power are not themselves implicated, which they often are. So even where there are professed commitments by authorities to take justice forward where atrocities have been committed, proposals for credible accountability may not advance. Some examples include the stagnated proposed Extraordinary Criminal Court for Liberia, or also the Hybrid Court for South Sudan. International tribunals arose precisely to fill the reality of impunity despite the needs of justice for serious crimes.

Yet domestic proceedings can be preferable when they can be done credibly. Domestic trials may afford greater accessibility to communities affected by the crimes and contributions to promoting respect for the rule of law, although achieving these goals requires an intentional approach. They also expand the reach of justice beyond what is possible at the ICC, a single institution that has dealt with nearly 20 situations, with some dozen active at present.

It is far from certain that the ICC prosecutor’s engagement in a given situation will prompt domestic accountability initiatives, or that the engagement will not suffer from deficiencies that could reinforce authoritarian tendencies. Labuda rightly highlights that even where the ICC Office of the Prosecutor has made a more concerted effort to prompt sound practice domestically, such as with Kenya, successful practice may not materialize (Labuda, pg. 145.)

But Labuda does not acknowledge that important counterexamples may exist, as exemplified by the situation in Guinea, nor does he give adequate weight to the significance of any situation where national prosecutions of higher-level suspects move forward domestically given their difficulty and rarity.

There was a period of significant stagnation in Guinea after judges ruled the case should go to trial before before it commenced in 2022, amid wider political developments. But the OTP’s visits to the country during which ICC officials met with government representatives, judges leading the investigation, civil society, international partners, and media were central to the progress of the judicial investigation which ultimately made the trial possible. Judges were appointed to conduct the investigation ahead of the ICC’s first visit, a team of gendarmes were assigned to provide the judges’ security one week before one of the ICC’s visits, and new charges for suspects were issue at a slow, but steady pace of about two individuals a year, as the ICC has visited Guinea around twice a year.

One Guinean justice official told Human Rights Watch that the simple fact is that an ICC visit “boosts the political will,” and this contributed to forward momentum in the investigation. Other interlocutors suggested that the visits increased the confidence of the investigative judges and encouraged them to move ahead by creating a sense that they were not “going it alone” on such a sensitive case.

Labuda states that “the DRC investigation has not fulfilled the most optimistic predictions of the ICC’s shadow pushing states to do justice domestically,” (pg. 140), but the Guinea experience suggests that the DRC experience should not be overgeneralized.

It took thirteen years and many ups and downs before the trial for the crimes opened in the country’s capital, Conakry, on September 28, 2022. Some thought it could never happen, but in the end, victims and family members watched as 11 accused, including a former president and former ministers, stood before a panel of judges on the trial’s first day to enter their pleas.

Moreover, given the difficulties of advancing domestic accountability, and especially of mobilizing adequate political will by domestic authorities to pursue such efforts, any success with respect to generating credible domestic judicial action for accountability for serious crimes is formidable.

The OTP has offered distinct value to spur national proceedings. This should be recognized and leveraged to maximize chances for victims of atrocity crimes to access justice. The OTP has a new draft policy to encourage complementarity and cooperation with national authorities, while pursuing its own mandate to investigate where needed, and it will be important to integrate lessons from successes and challenges in the Guinea situation into this policy, enabling the most significant shadows possible to be cast to encourage domestic accountability.