The Positive Complementarity Turn
Institutional Design, Politics and the Way Forward
I would like to thank the seven contributors for their generous and though-provoking analyses of my book. For a first-time author, it is humbling and rewarding to read how others perceive my arguments and the book’s relationship to the wider field of international criminal justice. While this response cannot do justice to the many thoughtful comments in the six posts, I will start by setting out the book’s origins and main claims, before picking up on several themes cutting across the different posts, and finally offering some concluding thoughts and avenues for future research.
In the Court’s Shadow is the culmination of a journey that began over a decade ago in the Democratic Republic of Congo (DRC), where I worked as an international justice advisor. Over the years, different jobs sent me to Sudan, South Sudan, the Central African Republic and Libya, which in turn gave impetus to doctoral and post-doctoral research – on which this book is based – in several other contexts, notably Rwanda and Sierra Leone that serve as two of the book’s three main case studies. The book draws on this socio-legal research and professional experience to explore the origins, rationales and consequences of what it calls the ‘positive complementarity turn’ in international criminal justice. In a nutshell, I want to understand the declining importance of institutions like the International Criminal Court (ICC), which prosecutes only a few cases at a time (with often disappointing results), and the ever-increasing emphasis on domestic accountability for serious crimes (think only of the now ubiquitous slogan ‘the future of international criminal justice is domestic’).
How should we think about the move away from international – and toward domestic – courts as the main sites of international criminal justice? One take-away from writing this book was that scholars and practitioners have become very (maybe too?) good at diagnosing everything that is wrong with international tribunals. To be fair, much is not right with global institutions like the ICC, but the book contends that we are only beginning to understand the flipside of the ICC’s struggles: what aspects of ‘the fight against impunity’ work and, equally important, do not work at the national level? In diagnosing both the good and bad of domestic justice in Rwanda, Sierra Leone and the DRC, including the phenomenon of ‘unintended diversionary complementarity’ that several posts allude to, the book is an appeal to move a beyond binary framing – either international or domestic – and to think more constructively about how the international and domestic spheres can work together in the global anti-impunity project. To take one example, it proposes a novel conceptual framework and vocabulary for thinking through how – beyond the empty signifier that is the word ‘complementarity’ – international and domestic actors interact with one another. Somewhat fortuitously, as Elise Keppler points out in her contribution, this symposium coincides with the ICC Prosecutor’s consultations on a new complementarity paper – one hopes these posts might contribute to this process.
ICT Institutional Design and the Ecosystem of Global Criminal Justice
The symposium featured a mix of practitioners, activists, diplomats, and scholars (some wearing multiple hats), and it is not surprising they have different views on how international and domestic justice has worked and/or should work. However, an important theme raised by several contributors is how institutional design matters (or not) for the pursuit of accountability. As a reminder, my book compared three tribunals that regulate relations with states in different ways: complementarity, primacy and the Special Court for Sierra Leone’s hybrid and restrictive mandate. Of the contributors, Keppler is least persuaded by my analysis of the ICC’s practice of complementarity. As Keppler argues: ‘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.’ Keppler uses the Guinea preliminary examination to make the case that, unlike the other tribunals, the ICC is unique in its ability to catalyze trials that would otherwise not take place. She concludes: ‘not all “shadows” cast by international courts are comparable… some shadows loom larger than others.’
Keppler and I agree on more than her post might imply, but two points will help clarify what separates us. First, I am unpersuaded that the Guinea case study proves her point or refutes mine. From a methodological perspective, it is difficult to prove the counterfactual that trials that did happen would not have happened but for the ICC’s – not some other tribunal operating with a different institutional design – presence. But even if one accepts that this can be demonstrated, the ongoing trial of the Conakry stadium massacre strikes me as questionable evidence of positive complementarity qua catalyst for domestic prosecutions. It took more than a decade for the trial to begin in September 2022, and the precipitating factor was likely regime change, more so than the Office of the Prosecutor (OTP)’s outreach. A cynic would point out that if the ICC waits long enough, something good might eventually happen, at which point the Prosecutor could always claim credit – a problem that has bedeviled assessments of complementarity in Colombia. More importantly, given that the legal and factual predicates for an ICC prosecution in Guinea were met years before the domestic trial started, I would suggest the Conakry trial provides valuable insights into other challenging questions about justice in the domestic context, to which I return later.
Second, the above comment should, conversely, not be read to imply that the ICC did not play an important role in Guinea. While I did not study the Conakry trial for the book, one of my core claims is that the ICC casts a ‘symbolic shadow’ over domestic prosecutions in many (though not all) countries, especially by galvanizing civil society activism, starting with the book’s DRC case study but also in e.g. Colombia, the Central African Republic… and indeed Guinea, as Keppler explains through her analysis of the OTP’s outreach to Guinean authorities over the years. In this regard, the book expressly distances itself from critiques that view ICC interventions as mainly epiphenomenal or detrimental to domestic justice efforts. In Guinea, the DRC and beyond, I agree with Keppler about the ICC’s importance, though not necessarily about the mechanics of how international intervention matters.
Picking up on the mechanics of international intervention, Elena Baylis argues in her contribution that, while institutional design matters, tweaks to the design of international criminal tribunals (ICTs) can only get us so far in terms of increasing their effectiveness on the ground. She emphasizes two actors who play an equally, if not more, important role in galvanizing the fight against impunity, namely regional organizations and the NGO/rule of law community.
Baylis’ point seems to be confirmed by Stephen Rapp’s analysis of the Chad accountability process, which illustrates how regional organizations like the African Union (AU) can contribute meaningfully to justice. Although my book mentions the promise of regional organizations only in passing (Chapter 5), and I am fully on board with Baylis’ point about the limits of institutional design (Chapter 7), it is worth emphasizing that regionalism presents both promise and risk for international criminal law. For every Habré case or the European Union’s conditionality in regard to the ICTY, there are instances where opposition or passivity from regional actors have stymied accountability. Baylis notes the challenges faced by the Kosovo Specialist Chambers, and the AU’s role in shielding Omar Al-Bashir is well known. There is also the South Sudan hybrid tribunal, mentioned by Keppler, which the AU has failed to bring into existence mainly due to political obstructionism. So, while I agree with Baylis that “domestic accountability mechanisms may be more effectively influenced by those regional organizations directly than by reforming the design of the ICTs”, I would suggest also that global courts like the ICC matter because they are sometimes the only viable alternative, lest we subordinate victims’ justice demands to the whims of (regional) politics.
The centrality of the NGO/rule of law community features not only in Baylis’ but also Rapp’s, Keppler’s, and Daniele Perissi/Guy Mushiata’s posts. I fully support the general point that rule of law activism is an essential force multiplier for the ICC’s presence in situation countries, but the DRC situation reveals like few others what is problematic about the ICC’s practice, including its interpretation of its institutional design. In supplementing my book’s analysis of domestic trials before Congolese courts, Perissi and Mushiata – two representatives of the NGO community working in the DRC – emphasize how much progress has been made in what they call phase three (2016-present) of the country’s reckoning with international crimes. Yet what is so striking about their rich empirical contribution is the virtual absence of the ICC Prosecutor from their story; it is as if dozens of domestic prosecutions have occurred in the DRC despite – not because of – the ICC. Interestingly, I offer a slightly more charitable reading of how the ICC’s ‘symbolic shadow’ mattered for rule of law actors in the DRC (Chapter 4), but I arrive at broadly similar conclusions and consider the OTP’s hands-off ‘accommodationist’ approach – analyzed by Genevieve Bates in her contribution – as a missed opportunity for a more iterative process of engagement with domestic accountability actors.
However, whereas Baylis seems to posit a sharp distinction between institutional design and the role of NGOs, my book strikes a different note and argues that tribunals can and should be designed so as to more organically embed civil society activism within international prosecutorial practice (and even judicial decision-making). In that vein, I propose a ‘relational complementarity’ approach that connects re-interpretations of Article 17 to the bottom-up practice of rule of law actors in situation countries (Chapter 7). The point is that, ideally, the work of ICTs and other rule of law actors should be institutionally co-dependent and hence mutually reinforcing, rather than an afterthought or bonus that international prosecutors, registrars or judges choose (or not) to integrate into their policies, case law and outreach. I acknowledge that this is no easy task, but – as has become apparent over time – one problem the ICC faces is that (too) much seems to depend on changing personalities in leadership positions (Chapter 7). Whereas some ICC principals view the wider rule of law community as a blessing, others as a bonus, yet others as a nuisance, I argue that more judicious choices of institutional design could potentially lock in mandated priorities for the future.
The Politics (and Personalities) of International Criminal Justice
The issue of how personalities shape ICT practice brings me to the subject of politics – prosecutorial, judicial, state, and great power politics. Bates suggests that at some point in the book ‘politics as such falls out of the story’, but this may be a matter of disciplinary emphasis. I agree that politics as such are not a – or the – variable of interest, but I tend to think that, for better or worse, the political (and personal) dimensions of international criminal law jump off the book’s pages from start to finish – something Kalika Mehta points to in her reflections on the ICC’s ‘survival mode’, selectivity, complementarity’s state-centric ethos, and judicial techniques of conflict-avoidance. In fact, my suspicion is that for some lawyers, the book’s politically-informed analysis of (positive) complementarity – how it came into being through prosecutorial policy and practice, judicial interpretation, ASP decisions, government actions in situation countries… and then my own reform proposals that emphasize complementarity’s political dimensions – may seem too far removed from traditional lawyerly debates over ‘pure law’ or justice divorced from politics.
Indeed, in reading Rapp, Keppler and Perissi/Mushiata’s posts, I was struck by how differently lawyers approach politics in evaluating the role of domestic accountability in a system of global criminal justice. For starters, I am sympathetic to Perissi and Mushiata’s argument that the ‘the Congolese model of accountability’ has entered a third, more dynamic phase – captured only partly by my book, for which the empirical work concluded in 2019. As they persuasively argue, the iterative efforts of civil society and the Task Forces has produced a series of significant, qualitatively superior trials that have challenged impunity at higher echelons of the Congolese political and military system than ever before. While I am less sure than them that these prosecutions overcome ‘unintended diversionary complementarity’ (they themselves recognize ‘numerous instances in which justice remains elusive because of power dynamics’) or the potential authoritarian side-effects of ICC intervention, Perissi and Mushiata address not only instances of progress but also the political dimension of domestic accountability and the obstacles that lie ahead. In his post, Rapp agrees the DRC is a case of ‘unintended diversionary complementarity’, but points to the Extraordinary African Chambers in Senegal coupled with domestic prosecutions in Chad as a more promising model of justice because it was ‘more victim-centered, in part because the recruited external allies were able overcome some of the resistance from domestic leaders.’ Strikingly however, Rapp does not mention the Chadian political elite’s interest in prosecuting Habré, continuing authoritarian rule in Chad, or the fact that many defendants convicted in the domestic trial he describes were ‘released without official explanation’ just a few years later.
Does this call into question the Chad/Habré case as a promising model of justice and, if not, why not? By the same token, should we focus on instances of progress or the remaining challenges in a ‘complex, long-standing, and multi-actor context’ like the DRC? I pose these questions not because I have good answers but rather because I myself struggle to reconcile how victim-centred (criminal) justice in contexts marked by widespread human rights violations should relate to wider societal demands for an emancipatory politics. There is also a distinct temporal dilemma to consider, as illustrated by the Guinea case study. In her post, Keppler applauds the fact the Conakry trial is finally underway – after years of external and internal pressure from victims, the OTP and other constituencies – even though we do not know the outcome. Yet just as I suspect Keppler’s evaluation of Guinea’s reckoning with the stadium massacre would have been different two years ago, so too I suspect her reading of the ICC’s intervention may be different two years from now if, for instance, everyone is acquitted, if a future coup leads to the release of key defendants, or – as in Kenya – if individuals suspected of serious crimes leverage trials for personal (political) gain.
One immediate answer might be that ICTs and rule of law actors simply cannot take politics into consideration, or try to anticipate ‘unintended’ consequences. However, I am not sure this is a viable approach to international criminal justice, which is wrought by accusations of selectivity and double standards. As Mehta warns in her post, there is a risk that the ICC’s practice of complementarity ‘ensures that cases against powerful states – with a strong rule of law framework – will not be admissible before the courts’, which in turn ‘further embeds the bias against countries whose legal systems do not subscribe to the western model of “rule of law”.’ Equally important, as the book emphasizes – and here I draw on Third World Approaches to international (criminal) law – scholars and practitioners should reflect not just on the international but, maybe first and foremost, on the domestic dimensions of selectivity and double standards, lest international criminal law become an illiberal tool for consolidating (authoritarian) power by national elites.
Taking Stock and Looking to the Future
What does all this mean for the future of international criminal justice? In her post, Bates observes that ‘[t]he backlash against the ICC seen in the last decade… 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.’ I could not agree more with Bates – much criticism reflects the fact that, despite all its flaws and shortcomings, the ICC remains a new and inconvenient reality for some powerful actors at the international, regional, and domestic levels. The question for us is how civil society, scholars, practitioners and diplomats should respond to the growing demands for justice in a multipolar world that seems to be moving away from democratic ideals? I offer four thoughts based on the book and the posts.
First, as Bates notes, there is a realist reading of how power matters in international affairs, but there is also a more complex story to be told about how norms co-constitute the reality in which ICTs operate. My book asks everyone to reflect more critically on how certain interpretations of the complementarity norm have shaped, for good and ill, the conditions of possibility in international criminal justice. To take one concrete example of how norms and ideas matter in the real world, the backlash against the proposed Special Tribunal for the Crime of Aggression against Ukraine illustrates how slogans and preconceptions about the superiority of, in this case domestic or hybrid tribunals, may foreclose viable responses to post-colonial impunity.
Second, the book is a plea to pay more attention to the domestic dimensions of international criminal justice. A disproportionate focus, scholarly and otherwise, on the ICC, case law, and international politics has left us with too many unanswered questions about how ‘the fight against impunity’ matters for people in countries dealing with serious human rights violations. Although this may be less ‘sexy’ than sweeping analyses of global norms and politics, the book is also an appeal for more granular socio-legal research to understand the role of the ICC and other rule of law actors in Mali, Afghanistan, Venezuela, the Philippines and beyond.
Third, it is important to be creative in the face of backlash. As Mehta suggests, one bright spot might be how the steady domestication of international criminal norms enables corporate accountability cases to move forward through the courts (though here, too, we must be attentive to unintended consequences, like the uneven distribution of universal jurisdiction litigation).
Last but not least, international criminal justice is just too important to be left to the ICC and states, most of which – Global North or South, East or West – have shown time and again that politics trumps principle. Although the current Prosecutor has emphasized complementarity in his outreach, the erosion of preliminary examinations, critiqued by Keppler – coupled with the lack of follow up on his predecessor’s policy paper that envisaged a more iterative role for the OTP in investigations – warrant caution and vigilance. Civil society will need to remain engaged on complementarity in its different forms and vocabularies, and – in so doing – help co-constitute the normative context within which a truly global anti-impunity ecosystem can coalesce.