Complementarity, Catalysts, Compliance Symposium: A View from Kenya

[Judy Gitau is the Africa Region Coordinator for the global Women’s Rights organization Equality Now, a lawyer, a published author in the fields of transitional justice and international criminal law and a member of Kenya’s civil society.]

In his book Complementarity, Catalysts, Compliance: The International Criminal Court in Uganda, Kenya, and the Democratic Republic of Congo, Christian De Vos illustrates what was intended by the legal rules under the Rome Statute as regards complementarity and the reality as has played out over the past decade in the different situation countries where the International Criminal Court has intervened.

De Vos articulately establishes Complementarity at the heart of the Rome Statute regime as the “core organizing principle for the regulation of concurrent jurisdiction” over serious crimes. He presents complementarity as under Article 17 of the Rome Statute as being fundamentally the determining standard of primacy over these serious crimes under the admissibility test presenting what appears to be – at least on paper- a sanitized legal process where impunity is eliminated. He then takes us further into an only more recently explored dimension of complementarity – complementarity as practiced or as evolved -which speaks of it beyond a norm in law to an instrument of policy which “promotes the ICC and the Rome Statute as proactive agents for domestic accountability.” It is here that we encounter an interpretation of the complementarity concept that presupposes that jurisdiction over serious crimes is not only a right for sovereign states but a duty as well with seemingly consequences where unfulfilled in line with international law. “As stated in the ICC Prosecutor’s first policy paper ‘[T]he system of complementarity is principally based on the recognition that the exercise of national criminal jurisdiction is not only a right but also a duty of States’.” Indeed, it is in reading this particular articulation that one senses that it is premised on the perceived legitimacy and authority of the ICC as a global body and therefore its potential as a catalyst in stirring up domestic accountability either coercively or through incentivization.

Speaking on the coercive aspect, De Vos illustrates with the use of preliminary examination by the Office of the Prosecutor, which hangs as the proverbial Damocles sword over States to perform their duty but is a strategy only as successful as the manner, timing and political context of the country in question. In fact, as is the case with politics, this conceptualization/interpretation of complementarity changes from context to context and is dependent on the national actors in question including what Christian refers to as “norm entrepreneurs.” In the court room, this political interpretation is quite limited.

Complementarity as incentivizing States to prosecute through technical support is presented as having largely remained a rhetoric owing in part to fiscal austerity on the part of ICC member states and in part to a common view held by various actors that this is well and truly beyond the scope of the Court and squarely in the domain of non -state actors. It has not stopped situation countries, however, from asking for knowledge transfer and technical assistance.

By far, this study’s presentation of complementarity as conceived in the statute versus as has evolved over the past decade is the most comprehensive and thorough curation of norms and practice bringing together the experiences of various interlocutors of the court and drawing key lessons and key question critical to this juncture where the court is seeking to re-invent itself.

Indeed, specific to the Kenyan experience, this study in my view inspires deep reflection and evokes deep-seated questions. At the forefront are the following:

• Firstly, does the evolved interpretation of complementarity best lend itself to addressing impunity for serious crimes as envisaged in the Rome statute?
• Secondly, should there be development of guiding principles on the application of this version of complementarity then or is its strength its versatility?

Does the interpretation of complementarity best lend itself to addressing impunity for serious crimes as envisaged in the Rome Statute?

It has been recognized including in this study that Kenya had, had a long history of impunity as regards political violence and that though the scale of the 2007-2008 violence was unprecedented it was not surprising. This was the case despite the existence of a legal framework proscribing the various violations that fell within the ambit of political violence although not within the scope of international crime and the existence of legal institutions as well. De Vos highlights some of this framework in his seventh chapter.

It is instructing that often times the instigators and organizers of political violence are the greatest beneficiaries of such violence through taking over key political positions. Gabrielle Lynch, as quoted in this study from her ‘Electing the “Alliance of the Accused”: propounds this premise.

As such a submission of ‘the case’ to the prosecutor for consideration for preliminary examination and ultimately investigation was not necessarily a call to spur local proceedings but a desperate call to ensure there was finally no more impunity for the violence. The application therefore of the prosecutor’s two-pronged test assessing the existence and genuineness of these proceedings a purely judicial process may have been appropriate on the first part but not so on the second, which aimed at promoting national proceedings.

The coercive aspect of positive complementarity therefore fell short of its desired outcome as the political class did not believe in the imminence and potency of the court owing to what could only be viewed as a miscalculation on the part of the OTP in not making public the initiation of preliminary investigation. Domestic proceedings were also met in part with lack of enthusiasm and or support from the “norm entrepreneurs “who did not trust the capacity and sincerity of a domestic process.  

De Vos aptly summarizes

“the OTP’s use of preliminary examinations holds some promise for catalyzing domestic accountability processes, but the conduct of these examinations is highly dependent on political context and timing, as the court’s intervention in Kenya suggests.”

He further adds: The ‘catalytic effect’ of complementarity should be understood as part of a complex political process, rather than a singular desired outcome. Judged by the latter, the outcomes that ICC interventions, through the principle of complementarity, intended to catalyze – domestic prosecutions of international crimes – have only rarely and sporadically materialized.

There may be therefore a need to revisit the OTP policy on positive complementarity to anchor it on ending impunity for serious crimes and allow versatility in strategy from case to case in the interest of justice as the Kenyan case has taught us.

There is also room to acknowledge the broader impact of an ICC intervention without necessarily packaging it within the Statute as part of complementarity.

A second critical aspect brought out in this study in relation to positive complementarity and ending impunity for serious crimes is the acknowledgment that the ICC does not hold monopoly over ending impunity for serious crimes everywhere at all times, although it certainly is central to international criminal accountability.

It has been acknowledged that in the Kenyan context, all the ICC cases collapsed, and the domestic proceedings were exceedingly limited in view of the scale of the violence. Yet there were some prosecutions, but these were not ‘seen’ as accountability for the Post Election Violence either by the court or by the local actors including in some instances the victims.

De Vos explains how

“domestic forms and possibilities for post-conflict justice are frequently compliance-oriented, with attention predominantly paid to criminal prosecutions and punishment as the principal measure of the ICC’s effectiveness. The perceived duty to legislate, investigate and prosecute ICC crimes has similarly placed the Rome Statute at the textual heart of accountability discussions, with less attention paid to other forms of criminal conduct. Thus, while complementarity might have initially encouraged some of the plural approaches more commonly associated with transitional justice, a de facto form of ICC primacy has instead taken root.”

Could this approach have stunted other processes that could have provided some accountability reparation and catharsis for victims of the Post- Election violence? Some complementarity? Indeed, there was contradictions in government reports concerning prosecution of cases emerging from the post -election violence and this is attributed in part to lack of contextualization of these cases as having occurred during the post- election violence.

Antonina Okuta as referenced in this study contends that

“the principal source of contradiction amongst the government’s various reports is that no link was made with the context in which the post-election crimes were committed…. Instructively, Kenya 2007 post-election violence did not result in a substantial or complete break-down of structures, yet the data was hard to come by. Another compounding factor was that the limited proceedings that did take place were not for international crimes, but ordinary ones.”

By no means would the investigations and prosecutions carried in Kenya before the ICC intervention have met an Article 17 standard, but a reflection of this situation results in the question: Could positive complementarity better fit as a prosecutorial strategy in a singular case as opposed to an overarching principle? The study also found that the Court’s early admissibility jurisprudence also contributed to the diminishing of plural processes to justice. The study explained

“the court has followed a relatively strict approach in its admissibility decisions, suggesting that a state’s domestic proceedings must largely mirror court proceedings in order to successfully retain (or assert) control over them. The application of this test has been even stricter when brought by an accused under Article 19(2)(a). Meanwhile, the court’s jurisprudence on ‘positive’ complementarity remains thin and underdeveloped.”

It is not surprising, therefore, that questions emerged amongst victims in the course of the case of there being lesser victims and greater victims on account of their cases not being characterized as “Crimes against Humanity” or not after admission of the Kenyan cases. This notion was further propounded unfortunately by the categorization of victims of the case and victims of the situation in the course of the case.

Should there be development of guiding principles on the application of this version of complementarity or it its strength its versatility?

This book has left no doubt about the critical role played by private actors and organizations in ensuring the realization of complementarity. It has also made it clear that these “norm entrepreneurs are both shapers of the normative content shaped by it.

“In this sense, as Emily Haslam has elsewhere argued, civil society organizations are both object and subject of the court’s ‘catalytic effect’. They seek to expand complementarity’s normative influence, while having themselves been transformed by it.”

As such it behooves the Court or OTP to provide a structure or prism through which this positive complementarity is to be interpreted by other actors. This may be critical in-order to protect the sanctity of the courts proceedings and thereby protect its legitimacy as well as protect the non- state actors from backlash. Legitimacy of an institution is derived from the fairness of its procedures, processes and decisions, as well as an assessment of the professionalism of the Court’s staff. (M. deGuzman, Gravity and the Legitimacy of the International Criminal Court) and in the case of the ICC where it is intervening in cases where the potential accused have political clout not just nationally but regionally, there is perhaps need to protect the court from that level of politicization and “murk raking“. Indeed, whilst the study acknowledges that “in all aspects of the ICC’s work, law and politics are inseparable” in the wake of its intervention in very politically charged contexts, the Kenyan case is instructing on how to the court.

In closing, this is an excellent most enlightening study which interrogates and causes us to interrogate the complementarity principle not as an intrinsically progressive doctrine, as Pascal Kambale puts it, but one that must be questioned in order to understand its drivers and perhaps detractors.

Kambale says, “If complementarity allows the ICC to project its proverbial shadow, this book urges us to consider the source of its light.”