29 March 2018

How do we strengthen the fight against impunity?

How can international criminal tribunals and national governments work together effectively to fight impunity for war crimes, crimes against humanity and genocide? A recent PhD thesis argues that, contrary to conventional wisdom, the International Criminal Court’s mandate, known colloquially as complementarity, is not an effective method of encouraging states to hold perpetrators of international crimes to account. Interview with Patryk Labuda on “The Complementarity Turn in International Criminal Justice: Assessing the Impact of International Criminal Tribunals on the Fight against Impunity”.

How did you come to choose your research topic?

It’s a long story. In 2010, I moved to the Democratic Republic of Congo for a new job as a civilian justice advisor to the European Union’s Police Mission. Somewhat unexpectedly, I got involved in a range of transitional justice initiatives, in particular efforts to draft Rome Statute implementing legislation and a law establishing a hybrid war crimes tribunal within the Congolese justice system. The work was fascinating and I had the opportunity to engage with politicians, diplomats and human rights activists on one of the most contentious issues in any conflict-affected society: how do we hold people to account for war crimes, crimes against humanity and genocide?

In the background of all this was the International Criminal Court (ICC), which had opened its first ever investigation in Congo and was active in Kinshasa and especially in the eastern part of the country. The ICC loomed large in all these discussions, even though my interactions with ICC staff were mostly indirect. This was also the first time I came across the word “complementarity”, a confusing term which basically means that governments have the primary responsibility to prosecute and punish, whereas the ICC only intervenes if state actors fail to discharge their duties.

After Congo, I worked with the Ministry of Justice in Sudan, which once again brought me into contact with the ICC. By 2012, the conflict over the ICC’s unenforced arrest warrant against the Sudanese President, Omar Al-Bashir, was making headlines around the world. At times, it was a pretty surreal experience to be discussing international law with people from the chief law enforcement agency of a country that was so openly defying the international community. By then, I knew I wanted to do a PhD to better understand the issues I was dealing with in my work, and specifically the interactions between international and national actors in international criminal justice. The one thing you don’t have time for in a regular job is time… time to think about contested issues.

Can you describe your thesis and its major findings?

The thesis seeks to test an assumption that I came across in my work in Congo and Sudan, and which remains very common in the field of international criminal justice today. It is often suggested that complementarity – a set of legal procedures embedded in the Rome Statute, the ICC’s foundational treaty, which gives states priority to prosecute international crimes – creates positive incentives for states to enforce international criminal law. The ICC Prosecutor, diplomats, human rights activists and scholars all invoke complementarity to argue that there is a “Rome System of Justice” in which the ICC, a court of last resort, prods states into action, ensuring that governments provide accountability for the worst crimes.

Based on what I had seen in Congo and Sudan, I had doubts that this was actually happening or that giving states the primary responsibility to prosecute would help to solve the problem of impunity. So I decided to compare the ICC’s jurisdictional framework to two other ways of regulating relationships between the international and national jurisdictional levels: (1) primacy, the system used by the International Criminal Tribunal for Rwanda (ICTR), which gave the ICTR priority to prosecute international crimes, while leaving to Rwanda those cases that were not prosecuted internationally; and (2) the arrangement used by the Special Court for Sierra Leone (SCSL), which restricted the SCSL’s primacy of jurisdiction to only those perpetrators “who bear the greatest responsibility”, leaving to Sierra Leone the burden of handling other perpetrators.

By comparing the relationships that developed between the ICTR and Rwanda, the SCSL and Sierra Leone, and the ICC and the DRC (this was the case study chosen for the ICC), I hoped to test whether complementarity was indeed generating more positive incentives for the DRC government to provide justice than the ICTR or the SCSL did vis-à-vis the Rwandan and Sierra Leonean governments, respectively. So my research question can be summarised as follows: is there any empirical evidence to substantiate the claims about complementarity’s catalytic effect on the enforcement of international criminal law? In other words, does the ICC encourage states to fight impunity, as is often suggested, to a greater extent than other international criminal tribunals?

To test this hypothesis, I travelled to Rwanda, Sierra Leone and the DRC to assess the situation on the ground. I interviewed some 200 national politicians, judges, prosecutors, police officers, civil society activists, diplomats and staff of the three tribunals under review. Using process tracing, I hoped to establish causality between the ICTR, SCSL and ICC and state-driven accountability policies. Specifically, I wanted to assess empirically whether and how complementarity, primacy and the SCSL’s mandate influenced or changed the accountability policies of governmental actors in the DRC, Rwanda and Sierra Leone.

My main finding can be summarised as follows: complementarity’s catalytic effect is essentially a myth. There is no empirical evidence in the DRC (or in any other ICC situation country thus far) that would corroborate the hypothesis that complementarity is positively influencing the accountability policies of governmental actors in ways that are conducive to fighting impunity for international crimes. In fact, the Rwanda case study suggests that the jurisdictional incentives embedded in primacy exert far more pressure on state actors to change their behaviour in ways that are conducive to fighting impunity. By contrast, the Sierra Leone case study suggests that providing a tribunal with a narrow mandate restricted to only those bearing greatest responsibility significantly reduces pressure on state actors to actively participate in the fight against impunity.

That being said, the thesis also concludes that, despite the absence of empirical evidence to suggest that the ICC’s jurisdictional framework is effective at mobilising state action, complementarity nonetheless functions as an ideology with far-reaching consequences for the ways in which international criminal justice is implemented in conflict-affected countries. Despite its ineffectiveness as a method of enforcing international criminal law, complementarity has transformed the way in which international lawyers think and talk about their discipline, with significant consequences for international criminal justice as a whole.

One effect that stands out among many others is that states have emerged, for better or for worse, as co-equal partners with international criminal tribunals in the enforcement of international criminal law. There is a real “complementarity turn” (this being the title of the thesis) in our field, meaning that states are now entrusted, rhetorically, with the responsibility for enforcing international criminal law, even if this does not lead to more domestic trials and likely decreases the effectiveness of international criminal justice as a whole. Ultimately, the thesis seeks to draw attention to the multiple unintended consequences flowing from this re-orientation of priorities, away from international trials and toward domestic enforcement, in international criminal justice.

What would be your policy suggestions for improving the fight against impunity?

The thesis draws attention to a question that is (surprisingly) underexplored in the field of international criminal justice: how can international actors convince states to do things governmental actors do not want to do? I argue that if the international community really wants to fight impunity, it is time to revisit a number of assumptions about how international criminal tribunals and state authorities interact (cooperate, ignore each other, undermine one another’s work, etc.). To be sure, there is no silver bullet for the problem of impunity. However, I suggest that, if international, regional and national actors (civil society, governments, international organisations) really want states to prosecute international crimes, then international criminal tribunals should be endowed with primacy of jurisdiction, not complementarity. This conclusion will be counterintuitive for many people, but the thesis explains in detail why primacy is far more likely to create the right set of incentives for both international and state actors.

This is not a hypothetical research question. It has very concrete policy ramifications. New tribunals are currently being established or mooted, yet there is little scholarship on institutional and jurisdictional design. For instance, the proposed African Court of Justice and Human Rights, a revamped tribunal with potential jurisdiction over the entire African continent, has already embraced the logic of complementarity, for all the wrong reasons, virtually ensuring that it will be just as ineffective as the ICC in trying to catalyse domestic action. If nothing else, this thesis is a plea to scholars, diplomats and human rights activists to reflect more critically on the ideology of complementarity (which is omnipresent in our field) when they devise policies that are nominally intended to promote the fight against impunity.

Patryk Labuda defended his PhD thesis in International Law on 21 February 2018. The jury was composed of Professor Nico Krisch, president and internal reader, Professor Paola Gaeta, thesis director, and Professor William Schabas, external reader from Middlesex University, London, UK.

Full citation of the PhD thesis:
Labuda, Patryk I. “The Complementarity Turn in International Criminal Justice: Assessing the Impact of International Criminal Tribunals on the Fight against Impunity.” PhD thesis, Graduate Institute of International and Development Studies, 2018.