Taking Complementarity Seriously: Why is the International Criminal Court Not Investigating Government Crimes in Congo?

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies in Geneva and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights. He is currently on exchange at Harvard Law School.]

The International Criminal Court (ICC) faces many problems. Some of them are well known, for instance its inadequate budget, accusations of anti-African bias, and withdrawals from the Rome Statute. But there is a far more insidious cancer that is eating away at the Court’s legitimacy: complementarity. As with so many other developments at the ICC, it is the situation in the Democratic Republic of Congo (DRC) that foreshadows some of the Court’s long-term dilemmas, many of which received too little attention in Rome. This post explores how the Prosecutor’s confused approach to complementarity undermines the Court’s mission in the DRC and, potentially, in other situation countries going forward.

The ICC and Congo

To hear Fatou Bensouda tell it, the ICC’s intervention in the DRC is something of a success story. The Court’s track record there seems positive, especially when contrasted with other ICC situations: Thomas Lubanga and Germain Katanga have been tried and convicted, and Bosco Ntaganda is currently on trial. Another Congolese, Jean-Pierre Bemba, is the Court’s only high-profile convict to date, even if his conviction formally stems from the situation in the Central African Republic. Thus, with the possible exception of Mathieu Ngudjolo’s acquittal in 2012, Congo is usually portrayed as a beacon of hope for an otherwise beleaguered institution struggling to gain legitimacy in Africa. But is this narrative of success compelling?

A cloud of suspicion has hung over the ICC’s activities in the DRC ever since Joseph Kabila ‘invited’ the first Prosecutor, Luis Moreno Ocampo, to launch an investigation in 2004. Kabila’s ‘self-referral’ succeeded beyond his wildest dreams: lacking a strategy for a country the size of Western Europe, the Office of the Prosecutor (OTP) initiated sporadic prosecutions which targeted only Kabila’s rivals, including Bemba who had almost defeated him in the 2006 presidential election. In stark contrast, the Congolese government’s crimes received no scrutiny in The Hague.

Thirteen years after Kabila’s invitation, the ICC’s neglect of government crimes is coming home to roost. The DRC is in the news for all the wrong reasons. Kabila’s refusal to relinquish power, despite being constitutionally required to do so, has stoked mass violence on several occasions, leaving dozens dead in the streets of Kinshasa and other cities. After a series of damning reports (see here and here), last month the UN High Commissioner for Human Rights formally requested a commission of inquiry to examine ‘recurrent reports of grave violations’. Most importantly from the ICC’s perspective, these reports show beyond a shadow of a doubt that the violence is part of a governmental strategy to keep Kabila in power at all costs. The pattern is familiar: each time the political opposition organizes protests, state agents – police and military – resort to deadly force. Yet despite thousands of cumulative deaths, reports of dozens of mass graves, and even graphic videos of summary executions by government troops, the ICC has been virtually absent from the debate about accountability.

Why, despite such overwhelming evidence of state criminality, has the ICC not investigated Kabila and his supporters? The answer lies in the OTP’s contorted reading of complementarity.

The ICC and Complementarity

Complementarity is the structural principle that regulates the ICC’s relationship to states like the DRC. Unlike the ad hoc tribunals for Rwanda and Yugoslavia, the ICC is not supposed to simply assert jurisdiction over high-profile suspects or cases that it considers particularly grave. The ICC’s jurisdiction is only ‘complementary’, which means it gives priority to genuine national proceedings (Article 17, Rome Statute). To invoke a metaphor frequently used by Court officials, the ICC is not a ‘port of first call’ but rather ‘a court of last resort’. Put differently, the Prosecutor intervenes only when national authorities do not, or are ‘unwilling or unable’ to, discharge their prosecutorial duties.

In its press releases, the ICC seizes on complementarity to explain its inaction in Congo. For instance, in her most recent press release, Bensouda

urge[s] the competent DRC authorities, in accordance with the principle of complementarity, which lies at the heart of the Rome Statute of the ICC and which confers on States Parties the primary responsibility to investigate and prosecute, to take all measures required to conduct genuine investigations…

This all sounds fine except that Kabila’s government has yet to ever discharge this ‘primary responsibility’ against its own state agents, at least none in positions of power. It is no secret that the Congolese justice system lacks independence, despite years of capacity building. A few dozen domestic trials have taken place since 2006, but initiating genuine national investigations into international crimes, especially against high-ranking military commanders allied with Kabila, is simply not possible. Bensouda’s exhortations notwithstanding, the Congolese judiciary is ‘unwilling or unable’ to prosecute state-sponsored crimes like the ones that have surged around Beni and elsewhere in the last four years.

Bensouda has issued periodic statements since 2013, warning that her Office continues to ‘carefully monitor’ the situation in the DRC (see here and here). But Kabila will not be fooled easily. A regular attendee at the annual Assembly of States Parties, the Congolese government understands how the Court operates. Although the OTP does not formally disclose where it has active investigations, one can deduce from the ICC’s annual budget that there are no new investigations planned in Congo. Budgetary constraints mean that unless the Prosecutor reconsiders her approach to complementarity, there will be no accountability for Kabila’s crimes.

Rethinking Complementarity

The ‘unfolding horror’ – to paraphrase UN High Commissioner Zeid – has forced Bensouda’s hand in recent months. In addition to her periodic press releases, the OTP went one step further in October 2016, sending a delegation to Kinshasa to liaise with the authorities. Then, last week, her Office organized a workshop with the national Human Rights Commission. These initiatives were meant to show the ICC’s resolve in the face of a deepening crisis, yet the disconnect is apparent: as OTP staff provided training to an institution with no prosecutorial powers, the UN’s peacekeeping mission announced the discovery of 17 additional mass graves, bringing the number of mass killings in just one province (Kasai) to 40. Not for the first time, the UN made abundantly clear who was responsible. A UN human rights report released last month drives this point home (para. 78):

…no State agent or official has so far been investigated or prosecuted for the extrajudicial killings and other serious human rights violations committed in the context of the authorities’ actions to prevent and contain the demonstrations. This was also the case during major demonstrations and opposition activities which occurred in September and November 2016. The lack of accountability for past human rights violations… may have encouraged a sense of impunity [for] defence and security forces to commit further violations in December 2016.

Government-sanctioned impunity is precisely why the ICC was designed, in accordance with complementarity, to investigate as a court of last resort. Yet Ocampo and Bensouda have never explained why the Congolese army’s atrocities, for instance the Minova rapes and the sham domestic trial that followed, did not trigger an ICC investigation. Instead, over the past thirteen years, the OTP has used the Court’s limited resources to ‘chase’ rebels, most of whom the Congolese government wants prosecuted domestically anyway.

Complementarity was already an issue in the Lubanga trial, but it is the Katanga case that fully illustrates why the ICC’s case selection is so problematic: detained in Kinshasa on domestic war crimes charges, the OTP asked the DRC authorities to turn Katanga over for prosecution in The Hague. The Congolese duly obliged, but a flawed (multi-million dollar) international trial and a light sentence meant Katanga would end up serving just two years in prison (in addition to the seven years he was detained during his ICC trial). No one was happy with this outcome, so shortly before his release the Congolese scrambled to resurrect their domestic case. In January 2016, instead of being released, Katanga was ‘re-arrested’ and charged with crimes that mirrored the ICC’s case.

This alone should have caused consternation in The Hague (hold on, why did we insist on his international trial?), but in a stunning abdication of its judicial oversight function under Article 108 of the Rome Statute, the ICC Presidency then okayed Katanga’s domestic trial without so much as waiting for his domestic case file and despite serious human rights concerns (violations of the right to appeal and of the prohibition of ne bis in idem, and a possible death sentence). In the meantime, it has emerged that Congolese prosecutors have very little evidence against Katanga, so he might still be re-tried for the Bogoro massacre (though this seems unlikely) or he could be detained indefinitely, like his three co-accused who have languished in pre-trial detention for over a decade.

Katanga’s ICC trial made little sense from a complementarity perspective, yet this may soon be a case of ‘déjà vu all over again’. The Prosecutor’s only outstanding arrest warrant in Congo is for Sylvestre Mudacumura, the military leader of the FDLR, an infamous group implicated in the 1994 Rwandan genocide. Previous false alarms about his imminent capture proved to be wrong, but a spate of high-profile arrests in recent months (see here and here) suggest that the FDLR’s fortunes may be waning. There are also credible reports that Mudacumura, whose health is deteriorating, wants to turn himself in.

So what will happen when Mudacumura is arrested? In my conversations with Court staff, the response has always been that Mudacumura is ‘our case’. Yet it is hard to understand how another ICC trial of a non-state actor from Congo makes any sense from a complementarity perspective. For starters, Rwanda would be more than happy to try Mudacumura for genocide-related crimes, and in theory (Article 19 (2) (b), Rome Statute) complementarity gives Rwanda priority to do so. Likewise, the Congolese justice system has successfully tried government opponents, including FDLR crimes, so it too could theoretically take over this case.

More to the point perhaps, a domestic trial would have two major benefits for the ICC: first, it would allow the OTP to make good on its much vaunted policy of positive complementarity, whereby the ICC supposedly encourages – not hinders – domestic prosecutions. Second, the ICC would save millions of dollars that could be used to launch an investigation that clearly passes the complementarity test: against one of Kabila’s henchmen, none of whom the Congolese justice system has managed to hold accountable for well over a decade. Money for Mudacumura’s ICC trial will have to be found anyway (trials of suspects at large are not budgeted in advance), so what better way to justify a new DRC investigation?

Conclusion

I am not suggesting that relinquishing jurisdiction over Mudacumura is legally required. The ICC’s complementarity jurisprudence allows the Prosecutor to insist on his transfer to The Hague, just like the ICC judges could plausibly insist that Katanga’s international trial did not violate complementarity. My point is more subtle: how did we get to a point in the ICC’s history where complementarity can be credibly summoned to preclude the Prosecutor from opening a case against the Congolese government while, at the same time, permitting the Court to waste limited resources on an international trial that would easily be done at the national level?

Complementarity has spawned a huge literature. This post does not directly engage this, at times, highly legalistic debate which also happens to be divorced from the realities of the ICC’s role in conflict-affected societies; suffice it to say that, in my view, the ICC’s Article 17 case law is misguided, albeit in ways that are distinct from, say, Kevin Jon Heller’s lucid critiques. In my doctoral research, I explore not just the legal but also the historical, political and, crucially, sociological factors (in a Bourdieusian sense) that have contributed to what is now the dominant interpretation of complementarity at the ICC. This post merely draws attention to how this understanding of complementarity has warped the ongoing debate about accountability in the DRC. It is hoped that the systematic and widespread nature of Kabila’s crimes will spur civil society into action and prompt a reconsideration of the flawed complementarity rationale that is guiding Prosecutor Bensouda in her prosecutorial choices in Congo.