Complementarity, Catalysts, Compliance Symposium: A Reply

[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.]

It has been a pleasure to read the six reflections shared over the course of this symposium. I am grateful to Opinio Juris for hosting the discussion and to the contributors who have so thoughtfully engaged with the text and whose own scholarship, advocacy, and insights were a source of inspiration for me as the book developed. Rather than respond to each of the posts discretely, I want to focus on several of the common themes that emerged across them.

First is the relationship between legalism and catalysis. Liana Minkova’s post began the week by highlighting the tension between the different, evolving visions of complementarity that the book traces out and the adherence of ICC judges to a “legalistic interpretation of complementarity.” She persuasively situates my reading of the Court’s Article 17 jurisprudence within a “broader normative reorientation at the ICC towards a stricter understanding of legalism, often explicitly in opposition to previous tribunals.” This goes some distance to explaining not only the nature of the Court’s admissibility jurisprudence, but its approach to other procedural questions as well. As Minkova notes, predecessor tribunals held to “a vision of legalism that balanced rule-following with socio-political concerns,” whereas the ICC—perhaps because of the status accorded it as the pinnacle in ICL’s progress narrative—has been characterized by a “reduction of the need for judicial creativity.” Emblematic of a broader contest within the ICL over “visions of legalism” Minkova correctly reminds me that legalism is a question of degree: it is not a monolithic concept.

But there is a connection, in my view, between legalism’s commitment to rational and ordered understandings and the catalyst/compliance framework that the book interrogates. As I note in the conclusion, “In order to better appreciate the ICC’s catalytic power, then, legalism – understood as compliance with a particular set of rules – cannot be the dominant framework” (p. 274). Alexandra Huneeus suggests that this “framing apparatus” of catalysis is unsatisfying because of the Court’s iterative interactions with civil society and nation states, which the book, in part, illustrates. I am gratified that the book succeeds in this respect but, when the project began, catalysis was the normative assumption I sought to explore, even if it eventually proved to be an ill-fitting one. It was one that ICC actors and supporters clearly took seriously—as evidenced by the Court’s own early, triumphant rhetoric and an emergent body of legal scholarship that framed its inquiries around the ICC as a “catalyst for compliance.” Indeed, the myth of the ICC-as-catalyst continues to persist, propounded by those inside and outside the Court who are eager to demonstrate its impact through particular indicators of success. Huneeus concludes that it is “time to leave behind the overly used metaphor of ICC as catalyst” and I agree. I hope the book helps us all finally do so.

A second theme is the question of “positive complementarity” and the possibility of partnership between the ICC and national jurisdictions. Jacques Mbokani notes that Article 93(10) of the Statute—not Article 17—provides the legal basis for this concept, while Rod Rastan offers a persuasive textual defense of the “same person/same conduct” test linked to Article 17. As he succinctly puts it, the “‘same person/same conduct’ test is not an invention that has been read into the law – it is the law itself.” Touching on broader questions that the book poses about how popular understandings – or expectations – of a principle like complementarity can obscure both history and text, Rastan is also curious about “why there seems to be so much difficulty accepting the law as drafted.”  “Why the struggle?” he asks.

To that question, I turn to Sharon Nakandha and Pascal Kambale’s compelling post. Together they paint a picture of missed opportunities for the ICC’s interventions in the Democratic Republic of Congo and Uganda. They remind us of the often-overlooked fact that the DRC actually had experience (if imperfect) with Rome Statute crimes while Uganda, largely, did not; however, supporters of accountability in both countries looked to the ICC’s “tutelary shadow” to help them seek domestic accountability. In their words,

What endeared many of us to the ICC dream was that it was not going to be the sole vanguard of the global fight against impunity. It was going to serve as a ‘big brother’ to national systems, to walk with them to strengthen their capacity and ability to do the  same or even more than the ICC.

But that dream never materialized and instead Nakandha and Kambale imagine a series of tantalizing scenarios: the ICD and ICC jointly pursuing Dominic Ongwen’s trial, or the ICC and the DRC’s military courts handling Germain Katanga’s trial and investigation together from the outset. Perhaps such a partnership “would have resulted in more than just three ICC trials arising out of the DRC situation” and been a more efficient use of resources overall.   

Without being naive about the challenges of such partnerships, I share Nakandha and Kambale’s “ICC dream.” And I think the unease that Rastan identifies with the “same person/same conduct” test – why so many find it frustrating, even if accurate – is that it inherently pits the Court against national jurisdictions, when what we would prefer to see as a policy matter is cooperation and coordination (not to be confused or dismissed as “capacity building”). As Rastan acknowledges, the book concludes that Article 17 applications are not the best vehicle for achieving this and, like him, I think a more fruitful path in the long run would be to focus on “broader considerations forming part of charging decisions and prosecutorial policy.” Judy Gitau makes a similar point when she rightly urges the OTP to “revisit [its] policy on positive complementarity to … allow versatility in strategy from case to case in the interests of justice as the Kenyan case has taught us.” Such an exercise is overdue, and one hopes it will be a priority for the Office when the next prosecutor is elected.

That said, I do not want to let ICC judges too quickly off the hook. While I accept Rastan’s premise, criticism of the Court’s admissibility jurisprudence is not limited to the “same person/same conduct” test alone. Indeed, as chapter 3 details, the ICC has undertaken a relatively superficial level of review in assessing admissibility challenges (particularly those raised by individual defendants), while setting at times an unreasonably high evidentiary threshold for challengers to satisfy. These procedural hurdles are, in my view, in tension with the policy goals of positive complementarity. I would prefer to see a more clearly articulated and consistent application of a deference principle – along the lines of that called for by Judge Ušacka in her dissents – that could permit a more policy-oriented jurisprudence to emerge without radically departing from the framing of admissibility challenges as to the accused person and alleged conduct. I am also not persuaded that the Statute compels the exacting “same incident” approach that some chambers have followed, or that it would be unwise for judges to consider adopting, in certain cases, a “conditional admissibility” doctrine not unlike the conditional referrals that came to later define the completion strategies for the tribunals in Rwanda and the former Yugoslavia. To achieve all this, however, the ICC needs judges (and staff) for whom legalism is, as Minkova puts it, less a “matter of deeply held normative beliefs in the value of separating law from politics, rather than a professional habit.” Habits can be changed; beliefs are sticky.

Finally, there is the question of mimicry. Jacques Mbokani’s post highlights critical areas in which DRC courts have needlessly imported practices and procedures in an effort to “mimic” the ICC, a phenomenon the book addresses in some detail in chapters 5 and 6. He brings to the discussion the same keen legal analysis he brought to his magisterial study, Congolese Jurisprudence under International Criminal Law (for those who have not read it, you can do so in French here.) The points Mbokani makes about domestic accountability in the DRC—that “Congolese judges are very attached to the Rome Statute,” and that this “attachment sometimes goes too far”—illustrates similar problems detailed in the book, which, I contend, can have the perverse effect of chilling accountability efforts in the name of complementarity.

I fully agree with Mbokani that there is no justification for domestic accountability to be temporally restricted to Rome Statute crimes committed after 2002 (even if the ICC is so restricted) or that positive complementarity requires national courts to “apply the criminal qualifications derived from the Rome Statute.” Prosecution as ordinary crimes would have sufficed. Indeed, as he notes, implementation of the Rome Statute was not even necessary to achieve positive complementarity. So why the obsession with it? (For a compelling account of the supremacist logic of these limitations, see also Kamari Clarke’s recent piece in Just Security here.) Like Jacques, I want the concept to be “brought back to its proper proportions.”

Such mimicry is also starkly at odds with the rich picture that Huneeus paints of the work of Colombia’s Special Jurisdiction for Peace and how it has delineated its investigations to date. Huneeus reminds us that the ICC has now been engaged in some form of supervision and dialogue with the Colombian peace process for 15 years and, perhaps, it is this milder form of intervention—the preliminary examination—that has allowed the Office of the Prosecutor (OTP) to more nimbly navigate and influence the context there. My fear, however, is that Colombia, with whom the Court has had (as Kambale and Nakandha note) an otherwise unprecedented “long-term back and forth engagement,” might be the exception that proves the rule. Indeed, the discretion that the OTP has long enjoyed with respect to the conduct of preliminary examinations (the same discretion that may well have helped make Colombia a modest success story for the ICC) is under increasing fire from states parties and judges alike who wish to exercise greater control over their duration, scope, and conduct.

It is for this reason that I am somewhat less sanguine than Huneeus about the degree to which the ICC itself is changing “in response to its interactions with other actors.” What were indeed more dynamic, iterative processes in the Court’s (and complementarity’s) early, foundational years have, in my view, increasingly ebbed under the weight of poor leadership, micro-management by the Assembly of States Parties, and chronic underfunding even as the demands on — and docket of — the OTP continue to grow. This is precisely why the “review” currently underway of the Court – and the coming elections in December 2020 – are so pivotal to its future course.  As Minkova suggests, there is still space and time for the ICC to engage in a “more politically sensitive practice around complementarity.” But the clock is ticking.