Complementarity, Catalysts, Compliance Symposium: Measuring the ICC’s Success Using Complementarity

[Pascal Kambale and Sharon Nakandha are human rights lawyers with the Open Society Africa Regional Office (OSF-AfRO) where they serve as Senior Advisor and Program Officer respectively. They lead AfRO’s work on justice and accountability.]

The request to provide some thoughts on Christian De Vos’ book is timely as the ASP appointed group of independent experts continues it task of making “concrete, achievable, actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole”. In their recent interim report, they added complementarity to the list of topics that cluster three on preliminary examinations, investigations and prosecutions intends to look at. Their only caveat, “to the extent that it is relevant to preliminary examinations, prosecutorial and completion strategies”.

Christian goes beyond this prescription and presents complementarity in all its facets. He addresses the truths, myths, strengths, weaknesses that surround the concept, and by so doing, shows us that complementarity is always relevant to preliminary examinations, prosecutorial and completion strategies. He looks at the tradeoffs that both states and the International Criminal Court (ICC) make as they go about the uphill task of trying mass atrocities while at the same time remaining aware of the politics that besieges the international justice space. He confronts what is a blatant misuse of complementarity when states rely on it to play the “long game”, that is, find ways of avoiding The Hague. In Guinea, which has been under preliminary examination since 2009, activists with deep knowledge of the political context will readily tell you that their government has mastered the art of “hoodwinking” Hague officials into thinking that they are taking concrete steps to address the September 28 massacre, which is the subject of the preliminary examination. The unspoken rule: “only do what is enough to keep the ICC away”. Christian rightly notes that the ICC registered milestones in Colombia because of long-term back and forth engagements with the government, which in our view is the exception. For many countries particularly those with a deep culture of impunity, rather than stimulating national prosecutorial activity, the ICC’s “complementarity diplomacy” gives states the time and space to think of creative ways to delay justice. The loser in the end is neither the state nor the ICC but rather victims who must continue the long wait for justice.

When reflecting on the experiences in the DRC and Uganda, Christian paints the story of two calculative states, which managed to reap the benefits of the ICC. Presidents Kabila and Museveni were each dealing with a crisis in their country, and their inviting the ICC to intervene was part of a bid to resolve these crises. At the time, the Prosecutor Moreno Ocampo was more than delighted to take on this mission as the court was a young institution and this was an opportunity to prove the naysayers wrong. While there may be similarities in the motivation behind the decision to invite the ICC to intervene, the circumstances in the DRC and Uganda at the time were different. The DRC already had the military courts in place and the 1972 military code had long criminalized genocide, war crimes and crimes against humanity. The experience, however, was far from satisfactory and the positive complementarity tools were largely viewed as potentially allowing local lawyers to take advantage of the ICC’s tutelary shadow to plug the many holes plaguing the edifice of national prosecutions. Uganda on the other hand had no experience trying such crimes. What endeared many of us to the ICC dream was this complementarity idea, the fact that the ICC 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, walk with them to strengthen their capacity and ability to do the same or even more than the ICC. Moreno Ocampo’s “positive complementarity” framing and his important statement, “the absence of trials [before the ICC]…would be a major success” was inspiring.

Today, it however appears that the more cases the ICC handles, the better for its performance evaluation especially in the eyes of the public. Following LRA’s Dominic Ongwen’s arrest in January 2015, some of us naively expected that the Uganda government would put up a stiff challenge and demand Ongwen’s trial in the country. After all, the High Court’s International Crimes Division (the ICD) was in place and in terms of accessibility, it was much closer to the victims than The Hague. In its prep Q & A about the possibility of Uganda’s domestic courts trying Ongwen, Human Rights Watch’s response was as follows: “The ICC is a court of last resort. Under the Rome Statute, the ICC only prosecutes cases when national courts are unable or unwilling to prosecute. Once a case has been taken up by the ICC, as in the Ongwen case, it would only revert to national courts on the basis of what is known as an admissibility challenge, in which a country can show that it is investigating and prosecuting him for the same crimes…”

Indeed, the ICD was far from perfect at the time but one can already see the potential challenges presented by what Christian mentions with regard to the unwritten division of labor between the ICC and national systems. With the ICC ready to take on cases, States have enough wriggle room to step away from their primary duty to prosecute. Dominic Ongwen’s arrest happened just before the busy election season: the presidential campaigns were set to begin on November 9, 2015 and the elections on February 18, 2016. His arrest and trial in Uganda was an unnecessary distraction from the government’s priorities at the time hence the swift handover to “big brother” with limited debate on the judicial options at home.

The uncertainties that accompany any prosecution for serious crimes are such that it is impossible to predict the consequences of domestic prosecutions before an untested judicial mechanism. Let us try to dream nevertheless and tease out some optimistic scenarios. What would have happened had the ICD and the ICC jointly handled Ongwen’s trial? Perhaps we would have witnessed real time exchange of experiences and information between the two institutions including much-needed transfer of skills between international and national experts adjudicating, prosecuting, defending and investigating this case. Perhaps the government of Uganda would have finally committed the time, logistical and financial resources required for the division to succeed and live up to the expectation of, in one commentator’s words (quoted at Page 201 by Christian), “a running and well equipped WCD of Uganda [with]  the potential of becoming a regional criminal tribunal…”.

The admissibility interpretation allows states to choose when and how to trigger their national mechanisms, making it difficult to fulfil the aspiration of strong national systems that can ably complement the work of the ICC. If the court is true to this mission  of complementing national systems, then states particularly where they have set certain processes in motion should be given the opportunity to handle these cases at home in collaboration with the ICC. This is the only way that the catalytic progressive change in post-conflict countries’ legal frameworks and institutions mentioned by Christian will come to fruition.

Long before the ICC’s intervention, the DRC’s experience in prosecuting serious crimes was such that the President’s invitation to the ICC to investigate and later try the suspects appeared odd.  The question that this invitation poses – and which should have been asked at the time – is, “When the ICC intervenes in such circumstances, does this build, destroy or complement what already existed?” It was evident that the ICC handling of the cases against Katanga and Lubanga did not stall ongoing trials of mass crimes before the Congolese military courts. In fact, Katanga, upon serving his 12-year sentence following his conviction in an ICC trial, later appeared before a military court to answer other charges related to war crimes, crimes against humanity and participation in an insurrectional movement. The political motivations behind this trial notwithstanding, it was good to see a national judiciary take on the primary role of trying suspects of mass atrocities.  These parallel prosecutions nevertheless give the impression of competing prosecutions and thus leave a certain unease. What if from the onset, aware of their respective legal limits, both the ICC and the DRC’s military courts had handled Katanga’s trial and investigation together from the onset? Perhaps this would have offered the OTP the much-needed broader and more in-depth appreciation of the complex DRC context and today, this partnership would have resulted in more than just three ICC trials arising out of the DRC situation. Katanga may have viewed such a process as fairer as he would have had only one trial. In addition, under such a cooperative model, the ICC and states would each leverage their limited resources towards realizing the common objective of fighting against impunity.

Advocates and national prosecuting authorities in several situation countries – particularly those under preliminary examination – have often lamented that the ICC is resistant to change and that it jealously guards this “fight against impunity” territory, oftentimes unwilling to share the “pie” with national and other prospective regional jurisdictions. In its most recent strategic plan, the OTP makes an about turn and vows to consider “bringing cases against notorious or mid-level perpetrators […] to ultimately have a better prospect of conviction in potential subsequent cases against higher-level accused.” Who then will be the target of national jurisdictions? The less notorious mid-level perpetrator? This change in prosecutorial strategy by the ICC makes proactive and two-way cooperation between the ICC and national/regional courts the inevitable future.

When asked how they are contributing towards strengthening national jurisdictions, ICC officials  invariably point to the number of capacity building activities they conduct in different situation countries and of course their budgetary limitations. While these are persuasive arguments, we must turn to the reality of many of the situation countries. The capacity building space is in most cases saturated, with civil society groups both national and international organizing regular training for judges, lawyers and investigators. What the beneficiaries of these trainings often lack is the practical experience handling cases of this nature thus laying the basis for a shared mandate when it comes to dealing with mass atrocities. What better way to realize this than jointly working on case strategies, sharing evidence and information to support national actors as they take on the uphill task of trying such crimes in the places where they were committed. Such an approach would allow for extension of capacities beyond the renowned Hague institutions.