Complementarity, Catalysts, Compliance Symposium: The Spectrum of Ideologies in International Criminal Justice–From Legalism to Policy

[Liana Georgieva Minkova is a PhD candidate at the Department of Politics and International Studies, University of Cambridge, UK, and a full-award holder of the Arts and Humanities Research Council (AHRC) Doctoral Training Partnership.]

In Complementarity, Catalysts, Compliance, Christian De Vos sets himself the challenging task of providing new insight into one of the most discussed aspects of the work of the International Criminal Court (ICC), namely, the complementarity regime of the Rome Statute. The concept of complementarity has been the subject of extensive analysis in international criminal justice scholarship already, including Sarah Nouwen’s book Complementary in the Line of Fire, Carsten Stahn and Mohamed El Zeidy’s edited volume The International Criminal Court and Complementarity, and articles by Kevin Jon Heller (see here and here) and William Schabas. De Vos’s book ultimately succeeds in this endeavour by grounding his engagement with the question of complementarity in a novel perspective, namely, by examining the multiple socially constructed meanings of complementarity and their respective implications for building domestic criminal justice systems. The goal of this brief contribution to the symposium organised by Opinio Juris is to highlight the significant potential of De Vos’s framework of analysis for the study not only of complementarity, but of international criminal justice norms more broadly.

Drawing on critical traditions in international law scholarship, De Vos does not take the meaning of complementarity as a given. Instead, he traces the long process through which the complementarity norm has been ‘built’ by a variety of actors engaged in the field of international criminal justice (p. 66, Chapter 2). De Vos borrows insights from a branch of constructivist scholarship that examines international legal norms as the product of continuous social interaction that generates ‘shared understandings’ about the meaning of the law (see Brunnée and Toope). This constructivist framework of analysis enables De Vos to distinguish between different visions of complementarity that have been promoted, contested and justified both inside and outside the ICC (Chapters 2-4).

De Vos’s analysis of the drafting history of the Rome Statute reveals that the concept of complementarity was originally envisioned in technical terms as an admissibility rule that would demarcate the limits of the ICC’s jurisdiction (pp. 39-40). Thus, the subsequent shift towards understanding complementarity as a ‘catalyst’ for domestic prosecutions of international crimes, an understanding that has come to ‘dominate ICC discourse’, was by no means preordained (pp. 27-28). Rather, De Vos suggests, the ‘complementarity as catalyst’ vision emerged as a result of the efforts of ‘norm entrepreneurs’, including non-governmental organizations (NGOs) and legal experts. Based on a teleological, rather than a textual interpretation of the Rome Statute, these norm entrepreneurs transformed complementarity from a principle that constrains the court’s jurisdiction into a policy tool that extends the court’s authority by incentivising domestic justice sector reforms that ‘mimic’ the ICC regime (Chapter 6).

Yet, even as the ‘complementarity as catalyst’ vision has gained traction among international and local NGOs and donor organizations and in the writings of some legal scholars, the majority of ICC judges have remained faithful to the far less ambitious conception of complementarity as a technical admissibility rule. De Vos suggests that the judges’ restrictive vision of complementarity has been animated by the ideology of legalism – the idea that legal decision-making, such as determining the admissibility of a case, can and should take place without regard for the political implications of the ICC’s decisions, namely, promoting or impeding national criminal prosecutions (p. 70). De Vos cautions, however, that the judges’ legalistic interpretation of complementarity, according to which, in order to render a case inadmissible, domestic proceedings need to ‘mirror’ the ICC prosecutor’s case, can thwart rather than ‘catalyse’ domestic attempts at delivering criminal justice, a counterproductive outcome from the perspective of justice and the rule of law (Chapter 3).

The ICC Office of the Prosecutor (OTP) has found itself in the awkward position of being caught between these two contrasting visions of complementarity (Chapter 4). While ‘outside of the courtroom’ the OTP has championed the catalyst vision of complementarity, in court the Office of the Prosecutor has adopted the legalistic approach of separating the judicial dimension of complementarity, namely the determination of the admissibility of a given case, from the policy of ‘positive complementarity’, i.e. the proactive promotion of national proceedings through cooperation with the court (p. 101). 

De Vos himself is highly critical of the legalistic vision of complementarity and its pretence of being able to separate the juridical aspects of complementarity from their political implications. In his opinion, if the ICC is to ‘genuinely’ encourage national proceedings, then it has to allow greater ‘flexibility’ to states that would enable them to implement international criminal law (ICL) in accordance with the specificities of their domestic context (p. 99). But the ICC’s legalistic reading of complementarity as a technical rule of admissibility, which requires domestic proceedings to ‘mirror’ those at the court, has had the opposite effect (p. 81). This process of the ‘domestication’ of ICL has turned into what De Vos calls the ‘justice meme’ – the tendency to mimic conformity with ‘international standards’ (p. 15), often by directly replicating the ICC model into national law (pp. 154-155, Chapter 5). This copy-and-paste approach can end up competing with and undermining the development of functioning domestic judicial systems (Chapter 6). Furthermore, De Vos’s thorough analysis of the ICC’s involvement in Kenya, Uganda and the Democratic Republic of the Congo suggests that this practice of mimicking ‘compliance’ with the law could facilitate the pursuit of less-than-just political goals, such as side-lining political opponents and attracting material benefits from donors (pp. 264-266, Chapter 7). Contrary to ‘the linear process’ of institutional reform that legalism imagines, the domestication of the ICC model has turned out to be ‘fundamentally a political process’ where implementation has taken place sporadically and largely only when aligned with the political interests of states (p. 187).

De Vos presents a convincing analysis of the socio-political implications of the legalist ideology that has been guiding the ICC judges, and to some extent, the OTP. What is not considered, however, is the question of why the ICC judges have adhered to this legalistic interpretation of complementarity. I argue that the judges’ insistence on the separation of law from politics when it comes to complementarity is in fact part of a broader normative reorientation at the ICC towards a stricter understanding of legalism, often explicitly in opposition to previous tribunals. Thus, what we see in the contest between NGOs and ICC judges over complementarity is not so much a conflict between politicized norm entrepreneurs on the one side and professional legal technicians on the other, but rather a contest between two different normative visions of law and justice and even of legalism itself. This approach can help provide more insight into how the ICC might be steered towards a more politically sensitive practice around complementarity.

An analysis of judicial reasoning requires a closer look into the notion of legalism. De Vos relies on Judith Shklar’s concept of ‘legalism’ as an ideology based on the logic of rule-following that is shared among legal practitioners (pp. 11-12). The binary distinction between the legalist vision of ‘complementarity as admissibility’ and the policy idea of ‘complementarity as catalyst’ serves well the purposes of Complementarity, Catalysts, Compliance. But as observed by Shklar, since political considerations constantly intrude within the legal field, the legal practitioners’ commitment to rule-following should be understood as a matter of ‘degrees’ rather than in binary terms (Shklar, p. 148). Consequently, while legalism, broadly understood, constitutes rule-guided decision-making, that concept accommodates different visions of what ‘rule-following’ means. The practice of rule-following could be understood in a more relaxed sense, so as to allow for the integration of policy and moral considerations in legal decision-making, or in a more conservative sense that requires strict interpretation of the law. Just as with the different understandings of complementarity, different visions of legalism have become a source of contestation within the ICL field.

The first international trials following the Second World War and the revival of ICL after the Cold War were marked by a balanced vision of legalism that put lesser emphasis on strict rule-following and displayed sensitivity to the moral and policy implications of international judgments. For instance, the interpretation of legal rules at the Nuremberg tribunal appeared to be strongly influenced by the moral impulse of punishing the Nazi generals (Van Schaack). Furthermore, the United Nations (UN) tribunals for the Former Yugoslavia and for Rwanda often invoked creative interpretations of the law for the sake of ending impunity and developing a coherent system of ICL (see Darcy and Powderly’s edited volume). Those tribunals still subscribed to a vision of legalism, as evident by their continuous efforts to justify their judgments with reference to the scant pre-existing legal rules. But it was a vision of legalism that balanced rule-following with socio-political concerns. By contrast, since the early 2000s, the pendulum has swung back towards a stricter understanding of legalism among the ICL epistemic community, chiefly around concerns over defendants’ right to a fair trial. In what Darryl Robinson has called ‘the liberal critique of ICL’, an increasing number of legal scholars have advocated for more restrictive interpretations of the law.  

This vision of strict legalism crystallized around the ICC, a symbol for legal practitioners of the ‘maturation’ of ICL, and thus a reduction of the need for judicial creativity. The majority of ICC judges seem to share this vision of strict legalism. For instance, some of the judges at the Bemba Appeals Chamber expressly prioritised the legal principles of procedural fairness over considerations of delivering ‘substantive justice’ for the victims (Separate Opinion of Judge Van den Wyngaert and Judge Morrison, para. 4). Similarly, in Gbagbo and Blé Goudé one trial judge opinionated that if judicial decisions sought to serve ‘political or even humanitarian goals’, the ICC would become ‘a court in name only’ (Reasons of Judge Henderson, para. 10). For those judges, it seems that strict compliance with legal rules does not constitute merely a professional habit, but caries an important normative value in the modern world, namely, to distinguish with precision the ‘facts’ from the ‘fake news’ that dominate the public discourse (See ‘Separate Opinion’, para. 5 and ‘Reasons’, para. 4).

Thus, the contest between visions of complementarity corresponds to a broader contest within the ICL field over visions of legalism and the normative value of procedural versus substantive justice. All actors involved in the ICL field, and not just the judges and prosecutors, subscribe to a vision of legalism. Indeed, the complete rejection of legalism, understood broadly as rule-guided decision-making, would question the necessity of holding international criminal trials altogether. Rather, the disagreement appears to take place over the correct vision of legalism. The ICC and the ‘liberal critique’ scholarship have favored the vision of strict legalism, but many other prefer the vision that balances legal with policy concerns. While NGOs recognize the importance of protecting defendants’ rights, they have nevertheless become increasingly concerned that the highly legalistic approach of the ICC will bode ill for the prospect of victims of mass atrocities seeing justice done (see Women’s Initiatives for Gender Justice, p. 147). Some scholars have similarly suggested that the judges’ strict standards may be too harsh on the OTP, given the challenges of investigating mass atrocities (Robinson).

The analysis of legalism as an ideology that has been construed differently by different actors, rather than as a monolithic concept, bears implications for the prospects of promoting greater sensitivity to the policy implications of judicial interventions. If the judges’ legalistic approach to complementarity is a matter of deeply held normative beliefs in the value of separating law from politics, rather than a professional habit, it might prove harder than expected to persuade them in the importance of integrating policy concerns in their decisions. Nevertheless, not all is lost for those who hope to bring about change. The ICL field is dynamic and, if scholars and activists continue to problematize the ICC’s vision of legalism, a future normative shift may take place. De Vos’s book, in particular, significantly contributed to the promotion of a policy-oriented vision of legalism.