Complementarity and Post-coloniality

• Citation: Vol. 27 No. 2
• Publication year: 2013

Complementarity And Post-Coloniality

Nirej Sekhon

COMPLEMENTARITY AND POST-COLONIALITY

Nirej Sekhon^*

Abstract

The International Criminal Court's jurisdiction is complementary to that of national criminal jurisdictions. While most agree that complementarity is a cornerstone principle, debate continues as to what precisely it should mean for the ICC's relationship to national criminal justice actors. "Positive complementarity," a view many commentators hold, suggests that the ICC should use its power to educate, persuade, and prod states parties to undertake international criminal law investigations. For positive complementarity's more optimistic proponents, the future holds promise for a coordinated system of global justice in which the ICC plays a secondary role to national courts in vindicating international criminal law violations. In this essay, based on remarks presented at the Emory International Law Review's 2013 Symposium on the ICC's future, I argue that a robust regime of positive complementarity will require that the ICC deftly navigate a post-colonial landscape—i.e., widespread underdevelopment, political and social fragmentation, and epistemic heterogeneity. Doing so effectively will require tools the ICC does not have and a willingness to make political judgments that may seem unbecoming of a court. These limitations raise more profound questions about whether the ICC can speak to those who inhabit the globe's most desperately marginal spaces. While I am skeptical that it can, it is also unclear that domestic criminal justice actors are better equipped to do so. I conclude by suggesting that it may be more constructive to analyze complementarity through a descriptive lens rather than in grand normative terms. In this vein, I suggest that a "governmentality" framework that focuses on the development of bureaucratic culture may be useful for future research on complementarity.

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Introduction..............................................................................................800

I. Background....................................................................................801
II. Post-Colonial Dilemmas...............................................................804

A. Justice Without Judges?.............................................................804

1. Rule of Law in the "Third World".......................................805
2. ICC and Capacity Building..................................................808

B. Universal Law for Universal Misconduct..................................810
C. Politics, Sovereignty, and Justice...............................................816
D. Speaking to the Subaltern ........................................................... 820

III. Complementarity and Governmentality..................................825

Conclusion..................................................................................................828

Introduction

Given the number of adjectives used to describe complementarity and the pages written about it,¹ one would think that the issue regularly arose in the International Criminal Court (ICC). But more than ten years after the ICC's creation, complementarity discourse remains primarily about the ICC's—and international criminal law's (ICL's)—future. While the Rome Statute notes that the ICC shall be "complementary to national criminal jurisdictions,"² the treaty does not provide a specific template for complementarity. For the more optimistic proponents of "positive complementarity,"³ the future holds the promise of a coordinated system of global justice in which the ICC plays a secondary role to national courts in vindicating ICL violations.⁴ Proponents argue that the Court's organs—primarily the Office of the Prosecutor (OTP)—should use their power under the treaty to educate, persuade, and prod statesparties to undertake domestic ICL prosecutions.⁵

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In the discussion that follows, I address the question posed by the symposium's organizers by arguing that the more ambitious account of positive complementarity may not be the most "constructive" way to think about the subject. An ambitious notion of positive complementarity will require that the ICC deftly navigate a post-colonial landscape—widespread underdevelopment, political and social fragmentation, and epistemic heterogeneity. Doing so effectively will require tools the ICC does not have and a willingness to make political judgments that may seem unbecoming of a court. In part II below, I develop this argument and conclude by suggesting that the complementarity debate raises more profound questions about the ICC and ICL more generally. Neither seems particularly well equipped to speak to "the subaltern"—those who inhabit the globe's desperately marginal spaces and are most vulnerable to the harms ICL is concerned with.

In part III, I suggest that it may be more constructive to analyze complementarity through a modest descriptive lens rather than in grand, normative terms. In this vein, I suggest that the notion of "governmentality" may be a useful framework for understanding complementarity.

I. Background

Unlike most international criminal tribunals of the past—which adjudicated to the exclusion of domestic courts⁶ —the Rome Statute envisages a "complementary" relation between the ICC and national criminal jurisdictions.⁷ "Complementarity" describes the relationship.⁸ It is one of the Rome Statute's cornerstone principles.⁹ Former Prosecutor Moreno-Ocampo noted that success for the ICC might mean that cases stop reaching it.¹⁰ This is

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to hope that, using the Rome's Statute's language, widespread domestic prosecutions of ICL violations would render cases inadmissible before the ICC.¹¹ The more optimistic accounts suggest that complementarity could usher in an era of broad and deep responsiveness to ICL violations by domestic criminal justice actors, with the ICC playing a supporting role.¹² The Rome Statute, however, does not provide a detailed framework for such a robust regime of complementarity.

The Rome Statute's operative provisions regarding complementarity are found in Articles 17 through 19. Because these provisions have been the subject of extensive summary and discussion elsewhere,¹³ only a brief description is necessary here. Article 17 provides that the Court shall deem a case "inadmissible" where it is being (or has been) "investigated or prosecuted by a State" unless that effort is not (or was not) genuine.¹⁴ The latter exception allows the ICC to proceed in cases where, among other circumstances, a state has initiated legal process against an individual to "shield[] the person . . . from criminal responsibility."¹⁵ The ICC may also proceed in circumstances where "[t]here has been an unjustified delay" in the state proceedings.¹⁶ Either the accused or a state with jurisdiction over a case may raise admissibility before the ICC.¹⁷ To ensure that states with jurisdiction have an opportunity to do so, the OTP must notify such states upon concluding that there is a reasonable basis for an investigation.¹⁸ The Rome Statute limits when and how frequently admissibility challenges may be brought.¹⁹

The Rome Statute's drafters included the admissibility provisions to placate potential states parties concerned about ratification's sovereignty costs.²⁰ Although the ICC is similar to past international criminal tribunals with regard

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to the substantive crimes over which it has jurisdiction and the absence of head of state immunity,²¹ it is the first such tribunal with an indefinite and open-ended mandate; past tribunals were created for adjudicating cases that arose from a specific conflict involving specific states.²² In theory, any state party's (and even some non-party states) nationals could find themselves before the ICC.²³ The admissibility provisions also address the obvious fact that resource constraints will prevent the ICC from adjudicating anything but a sliver of the cases over which it will have jurisdiction.²⁴ This history tends to support a "negative" or "passive" view of complementarity.²⁵ By this view, the ICC should give wide berth to domestic prosecutions and only step in as a court of last resort when a state fails to satisfy its obligation to investigate and prosecute.²⁶

In contrast, many commentators view the Rome Statute as creating the basis for vigorous, collaborative relationships between the ICC and States. These commentators tend to use adjectives like "positive" or "proactive" to describe complementarity.²⁷ They view complementarity as creating leverage for the ICC to cajole or coerce state actors into investigating and prosecuting violations of ICL;²⁸ to correct deficiencies within states that are inclined to investigate and prosecute such crimes, but do so imperfectly;²⁹ and generally support states' efforts for carrying out such investigations.³⁰ For example, William Burke-White has proposed the notion of "proactive complementarity" whereby the ICC would use its "legal and political powers to activate states' domestic courts in international criminal prosecutions."³¹

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While the Rome Statute requires communication and cooperation between the Court and states, it does not lay out a precise template for positive complementarity.³² Notwithstanding the ambiguity, the more enthusiastic proponents of positive complementarity view the ICC as part of an evolving system of coordinated, global justice.³³ Even if this ideal is not as heady as that of an earlier generation of international law commentators—i.e., a vision in which international institutions' growth was coterminous with sovereignty's dissipation³⁴ —its vision of an activated, but harnessed, sovereignty remains ambitious. As a practical matter,we should question what a regime of positive complementarity actually stands to achieve and to what end.

II. Post-Colonial Dilemmas

Positive complementarity posits that the ICC will engage states...