Complementarity, Catalysts, Compliance Symposium: Why Catalysis is the Wrong Metaphor

[Alexandra Huneeus is Professor of Law at University of Wisconsin Law School, where she directs the Global Legal Studies Center and Chairs the Human Rights Program.]

Of the many innovations being advanced by Colombia’s peace mechanism (the Special Jurisdiction for the Peace, or SJP), one is the way it delineates its investigations. While some of its cases are organized by type of criminal activity – such as recruitment of child soldiers – others are structured by a different logic entirely: they focus on the crimes and harms of the war in a particular place. Further, in a series of recent resolutions, the SJP has accredited the territories of indigenous and rural Black peoples as victims of Colombia’s 50-year civil war.  It has drawn on indigenous concepts, or cosmovisiones, to transform these territories into rights-bearing legal subjects within the peace process.

The SJP, in other words, is re-inventing some of the ways in which post-conflict institutions approach the search for legal responsibility and reparation. In so doing, it is working in conversation with a rich constitutional tradition that embraces environmental protection and legal pluralism as foundational values, and which draws on  indigenous worldviews through interlegal dialogue. But the work of the SJP also unfolds in dialogue with the International Criminal Court (ICC). In 2005, the ICC opened a preliminary examination in Colombia which continues to this day. That means that throughout the time that Christian De Vos was writing his masterful Complementarity, Catalysts, Compliance; throughout the entirety of the hard-fought peace negotiation between the Colombian government and the FARC guerilla; and throughout the contentious creation and first years of the Colombian transitional justice institutions, the ICC Office of the Prosecutor (OTP) has been involved in Colombia. It has been supervising, engaging with, and opining on the Colombian peace process.

How then does De Vos’ analysis of the ICC –which was derived through case studies of three active investigations in Africa –hold up against the Colombian experience? De Vos writes that he did not use Colombia as a case study because it had not passed to the “situation” stage, and thus the engagement of the ICC would be more distant than in the African situation cases (18). Nonetheless, the Colombian experience mostly vindicates De Vos’ arguments. In particular, its innovations support his argument that the ICC should move away from the mirroring doctrine and instead allow states greater discretion to craft locally responsive and experimental solutions. It is also the case, however, that the SJP’s innovations reveal the limits of De Vos’ analytical structure, and why it is time to leave behind the metaphor of ICC as catalyst.

Reflections on “Mirroring”

Complementarity, Catalysts, Compliance addresses two audiences at once.  Its author is a scholar who wants to provide a rigorous, empirically grounded analysis of the how the ICC works to change things on the ground – its causal impact. But he is also an actor in the policy world, and the book seeks to intervene toward the development of more fine-tuned and realistic approaches to the ICC and international criminal law more generally. At the center of his policy intervention is his critique of “mirroring,” or the idea that domestic prosecutions need to look like those of the ICC, adopting the doctrines and practices of the international court. Not only is this a misreading of the Rome Statute itself, De Vos argues, but it  “flattens the breadth of what justice can or should mean in many contexts and it accommodates to state power, rather than challenging it (276).” In his view, the ICC should allow greater leeway for experimentalism.

It is within this tension – between mirroring and difference – that the SJP has come of age.  Indeed, the most salient question regarding the Colombian peace process under international law is: how much deference will the ICC give to the peace process, which is imbued with a more restorative, less retributive spirit than international criminal law? In particular, how far can the SJP stray from the retributive path before the ICC decides to open its own investigation of war crimes that took place during the Colombian internal armed conflict?

Thus far, the SJP has parted ways with the mirroring doctrine in many different aspects of its work. As noted above, one such exercise in innovation has been the SJP’s geographically focused investigations. Proponents of the territorial approach argue that it is better able to address the complexity of the harms of war as experienced on the ground. It is also an innovative way to lay emphasis on harm to the environment, and on the lived experiences and worldviews of indigenous peoples and rural black Colombians, for whom the connection to their land is a source of identity. The resolutions emphasize these groups’ epistemological differences.

Sceptics of these resolutions are concerned that they will not work with the other more conventionally organized investigations, which examine a crime regardless of where it took place, and emphasize harms which affected the country as a whole. As a result of their differing logics, the cases will potentially overlap and run into each other. And, of course, the territorial cases depart from the practice of the ICC, which also focuses on cases organized around type of crime.

In any case, the territorial cases and the example of the territory’s victimhood suggests that the SJP has not blindly adopted the mirror thesis, and it has certainly not allowed the ICC to “flatten the breadth of what justice can mean.” Rather, the SJP has brought new ideas, rooted in the views of Colombia’s indigenous peoples and Latin American ecocentric jurisprudence, into the realm of transitional justice. Were the territorial focus to succeed, these innovations might vindicate De Vos’ prediction that it is better to set aside the mirroring doctrine and allow states greater discretion to fashion practices and institutions that are responsive to local politics, constraints, and cultures.

Reactions to “Catalyst”

But if Colombia’s innovations succeed, might they, in turn, influence what De Vos calls the “transnational community of practice” of international criminal law, and even the practice of the ICC itself? It is in asking this question, however, that the limits of the book’s analytical apparatus come into view.

The book’s main empirical argument is that the ICC does not have much direct impact; rather, its impact on accountability at the national level is mediated by civil society. Thus, “while the threat of ICC intervention itself has not been a catalyst for domestic criminal proceedings (limited as they are), it has arguably had a far more consequential effect on the global and domestic private actors who orbit the Court…This assemblage of global civil society actors, technical advisors and international consultants who attend Court interventions are, in turn, often the critical agents who spur domestic reform agendas (13).”

But this description does not capture the entirety of the dynamic revealed by De Vos’ own findings. As he notes, civil society has changed the meaning of complementarity, expanding it well beyond the text of the Rome Statue. This expanded notion of complementarity has changed, in turn, what the ICC itself seeks to accomplish as it tries “to accommodate this more expansive understanding of complementarity” (14). In other words, it is not only that the ICC spurs civil society into action in pursuit of pre-established accountability goals; it is also that civil society reshapes what goals the ICC seeks, and in so doing reshapes the ICC itself.   

These complex multi-directional interactions are richly described in De Vos’ case studies. However, the framing apparatus obscures them. The metaphor of catalysis is particularly ill-fitting. As De Vos notes, catalysis refers to “the effect produced in facilitating a chemical reaction, by the presence of a substance, which itself undergoes no permanent change” (Oxford English Dictionary, my emphasis). The concept thus by definition cannot capture the dynamic, described by De Vos, in which what the court seeks is itself altered through its iterative interactions with civil society and nation states.

Instead of relying on the concept of catalysis, De Vos could have drawn on social theories that attempt to abstract from and provide a framework for understanding the complexity of social interactions and how they mediate power. Certainly he is aware of them.  In the final sections, De Vos calls on us to reconceive the work of international criminal law not as focused on the ICC, but “understood as a constellation of accountability efforts that orbit outside of the ICC, but that also contribute to an emergent, loosely integrated system of justice, these approaches recall what Mireille Delmas-Marty has referred to as ‘ordering pluralism’, wherein ‘the process of integration rather than the results, the movement rather than the model’ are the focus of a broader international justice project (292).” However, De Vos does not incorporate this type of thinking into the empirical sections of his book, and thus he never examines how it is that innovations on the ground are brought back into the transnational conversation on international criminal justice, reshaping what it seeks.

Part of De Vos’ reluctance to go beyond catalysis, I imagine, is that he wants to speak to the world of policymaking. Multi-layered, iterative analytical apparatus such as Bourdieusian field theory do not lend themselves to policy intervention. But ultimately it seems the top-down catalysis thinking constrains the empirical section and leaves it cut off from the insights of the wonderfully thoughtful and expansive normative section of the book. On reading the final section, it is easy to imagine that the innovations being developed, for example, in Colombia will influence the transnational community of practice on post-conflict accountability, and all the more so by virtue of the ICC’s preliminary examination. But such an idea is never really examined in the earlier sections, which are structured as inquiries into top-down court-catalyzed influence.

Given the high quality of De Vos’ writing and analysis, given the rigor of the case studies, and given the compelling conclusion of his book in which he reconceives international justice as a plural, multi-cited project with influence flowing in many directions, one looks forward to his next book. Perhaps that one could start with De Vos’ concluding insights and examine how courts, too, changes in response to interactions with other actors.