The Political Realities of Complementarity

In its 1995 Tadić ruling, the International Criminal Tribunal for the former Yugoslavia (ICTY) asserted that international tribunals should have primacy over national courts, in order to ensure that international crimes be prosecuted as such and that those accused of them be held to account (para 58). As the opening epigraph of International Criminal Tribunals and Domestic Accountability, this landmark ruling sits as the underlying reference point of comparison throughout the monograph: is primacy necessary, or are other institutional design features capable of promoting accountability, either domestically or internationally? The turn from primacy to complementarity as the guiding principle behind international criminal tribunals (ICTs) is the backdrop of the book, which at its core is about the effectiveness of the contemporary international human rights regime, what Labuda calls the “global anti-impunity project” (p. 3).

Complementarity as the Problem Rather Than the Solution

The monograph asks if and how the “shadow” of international criminal tribunals can incentivize state action and provide accountability for international crimes. It focuses on three primary outcomes and argues that the institutional structure of various ICTs – both as originally designed and as put in practice after their establishment – reflect certain values about who should enforce international criminal law. Preferences about international, domestic, or mixed enforcement, as expressed through the design of each ICT can in turn impact domestic trials, capacity building, and norm internalization, differently.

The project explores ICT-state relations through the lens of 3 ideal types: (1) iteration, (2) accommodation, and (3) isolation, which depend on whether government actors and ICT civil servants cooperate, ignore, or are in conflict with one another. ICT mandates formally govern these relationships, but the norms underpinning them can be a “rationalization for accommodation or conditionality-based tools geared toward iteration” (p. 38). Labuda points out that the former interpretation has been predominant across ICTs.

Labuda’s overall findings suggest that despite the multitude of justifications for it, there is a dark side to the complementarity turn, one we can see by looking at each of his outcomes of interest. For domestic trials, the complementarity turn has resulted in an impunity gap because there are now fewer incentives to challenge states to hold perpetrators accountable for atrocities. Capacity-building projects from efforts to promote “positive complementarity” have strengthened authoritarian tendencies, leading us to ask: capacity building to what end? And the norms undergirding the entire complementarity turn have emphasized outcomes rather than the processes used to get there, perhaps to the detriment of justice itself. Labuda paints rather a bleak picture of ICTs in the era of complementarity’s rise, identifying the shift toward seeing states “not as a cause but as a solution to impunity” as the primary moment where the project of international criminal justice gets off track (p. 40).

But he provides a series of practical solutions to the problems posed by the changing relationship between ICTs and states. Among them, he suggests that justice-oriented actors in the international community design mandates to ensure strategic conflict between ICT civil servants and governments so that tactical bargaining becomes necessary to overcome it – essentially, to include tools that promote a shift toward iteration rather than accommodation (pp. 281-94).

Labuda’s monograph reflects his background in law and the social sciences, seamlessly weaving together years of interviews, fieldwork, and in-depth analysis of existing research across three different cases to make a compelling case about the impact of an ICT’s institutional design on its ability to ensure that perpetrators of atrocities face accountability. Yet, the most interesting, and most important contribution of this work is the story it tells about how the process of pursuing international accountability and the norms about pursuing international accountability are mutually constitutive. This key insight is what sets the book apart from the others that seek to explain the impact of ICTs.

Impact(?) on Domestic Trials

I focus below on chapter 4, which explores the impact of three ICTs – the International Criminal Court (ICC), the Special Court for Sierra Leone (SCSL), and the International Criminal Tribunal for Rwanda (ICTR) – on domestic trials. Labuda’s findings in the chapter suggest that in moving from primacy to complementarity, the global anti-impunity project may have actually regressed in its efforts to promote genuine accountability at the domestic level. That is, given that state-affiliated suspects are those most likely to be shielded from accountability, and that primacy provides incentives for international civil servants to actually challenge this impunity, primacy may produce better outcomes than alternative institutional designs.

What is particularly interesting about what Labuda finds in this chapter is that primacy manages to have this impact despite the fact that day-to-day general investigative processes and decision-making is relatively similar across all of the ICTs in the study. ICTs all ultimately come to rely on government cooperation, following a take-what-you-can-get approach to pursuing perpetrators while hesitating to share evidence or take stronger action to support domestic trials. The ICC’s investigation in the Democratic Republic of Congo is where complementarity became a mechanism of accommodation rather than iteration, as the Court pursued cases that the government did not oppose and refused to monitor or weigh in on the government’s capacity or willingness to pursue domestic accountability (pp. 125-42). The SCSL operated alongside domestic prosecutions with few points of interaction – the SCSL’s restrictive mandate and the willingness of authorities in Sierra Leone to surrender high-level suspects meant that the Court had little incentive to weigh in on domestic processes like the standing amnesty. In not doing so, the SCSL came to serve as a cover for the government, allowing it to free ride on international prosecutions rather than supporting domestic ones (pp. 110-124). And after initial tension over who would prosecute high-value suspects, the ICTR settled into an accommodating relationship with the Rwandan government, focusing primarily on prosecuting genocidaires found abroad and otherwise ignoring domestic processes. But unlike the ICC and SCSL, the ICTR pushed the boundaries of this accommodating relationship, informing the Rwandan government of its special investigation into RPF crimes. While the Rwandan government pushed back and began limiting its cooperation with the ICTR, the prosecutor’s actions did manage to create incentives for the Rwandan government to hold limited domestic trials against several government affiliated suspects (pp. 91-110).

But even the threat of the ICTR invoking primacy was only so effective, in part because of politics: in addition to international push-back against investigating the RPF, especially from the United States, the hostility of Rwandan government to the investigation and its explicit lack of cooperation meant that the ICTR’s influence was only so strong. This is precisely why the Rwandan government was able to hold only one trial against four members of the RPF and acquit the two highest-ranked defendants. Labuda briefly alludes to the matter of politics, noting that the “intrastate political obstacles to domestic prosecutions…often trumps other institutional design features such as primacy or complementarity” (p. 144).

But the issue of politics seems quite central to understanding the impact of ICTs on domestic trials. For that matter, politics is essential for understanding Labuda’s other variables of interest as well. More generally, how international criminal law is interpreted and used – and to what ends – is intimately connected to the question of who holds power in a state and what their goals are. It is the role of power and politics in the story of complementarity’s rise to which I now turn.

Lingering Questions

The specter in the background of this piece about the rise and subsequent manipulation of complementarity as a design feature of ICTs is the matter of politics. As many have argued, ICTs exist in a political reality that produces winners and losers, and are forced to play the game in order to ensure their continued existence (see, e.g., Kersten 2016; Hillebrecht & Straus 2017; Ba 2020; Hillebrecht 2021). ICT-state relations are political, and so of course norms about who should prosecute international crimes are filtered through real-world political constraints.

In that sense, it is logical that ICTs operating under primacy-focused mandates would be the most effective in challenging the impunity of state-affiliated individuals. While the day-to-day operational concerns of international investigations may be generally similar across ICTs, primacy can insulate ICT civil servants by providing cover against claims of bias in the domestic and international political arenas.

Labuda engages with the practical, explicitly political, considerations that led to complementarity’s ascendance in chapter 2 of the monograph, in particular the compromises in Rome that laid the groundwork for how the ICC would engage with states (pp. 24-30). But then politics as such falls out of the story, which is surprising given how the shift toward positive complementarity is so enmeshed in a story of international politics.

The backlash against the ICC seen in the last decade – even amongst some of the Court’s most ardent supporters – suggests that at least a subset of states amenable to the global anti-impunity project are questioning ICTs, not because they are not doing enough but rather because they are doing too much (Mills 2012; Hillebrecht 2021; Boehme 2022). That is, rather than seeking a return to the absolute primacy evident in the Tadić ruling, these states have been demanding a deepening of complementarity, which is of course a large part of what has given rise to the interpretation of positive complementarity as capacity building.

So, what to do with the question of politics? A realist take might be to argue that in fact these institutions are operating exactly as designed: ICTs are subservient to states (and recognize this!), but must nonetheless justify their existence and use of valuable international resources, so they use ideas like positive complementarity to claim relevance in the international system. But the overwhelming evidence of a normative shift presented in this piece suggests that there is much more going on, at least in the minds of international legal elites. One avenue of future research that might be fruitful is to expand on the questions Labuda raises in chapter 7, in particular questions about the implications of the ICC prosecutor’s turn towards focusing on preliminary examinations as the space for iteration. How does the ICC prosecutor’s office navigate international and local politics within preliminary examination space, and when does this produce an iterative relationship as opposed to one of accommodation or isolation?