Complementarity, Catalysts, Compliance Symposium: Introduction to the Forum

[Christian De Vos is a Senior Advocacy Officer with the Open Society Justice Initiative. He engages in advocacy across the Justice Initiative’s areas of work, with a particular focus on international justice and accountability for grave crimes.]

Ten years ago this month, I was packing my bags and preparing to move to the place where this book began: The Hague. Then a newly minted lawyer eager to lay claim to a career in human rights, I was about to begin my PhD studies at Leiden University’s Grotius Centre for International Legal Studies, joining a co-researcher I had yet to meet to examine the impact of the International Criminal Court (ICC) in what were then some of its first “situation countries.” Of particular interest to me was whether and how complementarity, as the ICC’s architectural lynchpin, could be a “catalyst for compliance” (understood as domestic criminal accountability), as much of the scholarship in the Court’s early, halcyon days had suggested it would be.  

I was aware at the time that the ICC was not performing as well as many of its supporters (state and non-state alike) had hoped, of growing concern about the Court’s almost exclusive focus on the African continent, and of the growing political pushback – soon to become a tide – from African states. But, still, I was excited. To me, the ICC was the pinnacle in international law’s long progress march. As a college student, its establishment had captured what Kamari Clarke might call my “sentimentalized imaginary” about what justice could and should mean. Indeed, those sentiments were what had ultimately led me to law school in the first place.

Looking back, I could have hardly expected where the next decade would take me or that this book would be the fruit of those labors. I give nothing away to say that the progress march I imagined as a law student does not appear in these pages; indeed, the book is an explicit plea against such narratives and a corrective to the privileged place that the ICC has held (at least until recently) in the legal firmament. The Court emerges, I argue, less as a catalyst for state actors to pursue domestic accountability in the three countries it considers—Uganda, Kenya, and the Democratic Republic of Congo—but rather for non-state actors to pursue a variety of ambitious governance goals. This paradox has both multiplied the meaning of complementarity—from a legal rule to an instrument of policy—and complicated it. In one context, complementarity can be invoked to displace the ICC; in another, it can become an extension for the Court, meant to “complement” and complete its work. And yet, by design, the ICC often remains at a distance from the complex political and social terrains on which it operates, frustrating its ability to play either of these multiple roles well.

Rather than understanding the Court as a causal agent for domestic accountability efforts, Complementarity, Catalysts, Compliance offers a picture of it as a highly symbolic, mediated site through which a range of public and private actors alike have sought to pursue domestic change, sometimes for good, sometimes for ill. The “catalytic effect” of complementarity, I argue, should be understood as part of a complex political process in each of the countries it engages, rather than a singular desired outcome. Yet too often the Court conceives of itself as functioning – to borrow from Judith Shklar – above political life, rather than in its very midst. The importance of embracing such a political orientation more clearly also requires, I suggest, greater skepticism about the strength of the ICC’s coercive potential and of compliance as complementarity’s principal mission.

Ten years later, the picture that has emerged is far from what I – and perhaps many ICC supporters – had thought. But this is a necessary reckoning: it is an invitation to think differently about what the ICC can do, what we can fairly ask of it, and its role in an international and political landscape that remains in enormous flux. I am delighted that the contributions to this symposium are an opportunity for continued reflection on these critical and complicated issues.