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This introductory chapter frames the overall book, arguing that the ICC’s principle of complementarity has become a transnational site and adaptive strategy for realizing domestic accountability, as well as an array of other governance goals. It argues that complementarity came to be framed as a ‘catalyst for compliance’ through a particular, duty-based reading of the Rome Statute. This reflects the broader dominance of legalism in transitional justice, which insists on the centrality of criminal law in the aftermath of mass atrocity. The first part of the book addresses the evolution, interpretation and implementation of complementarity by state and non-state actors, as well as Court actors (specifically, ICC judges and the Office of the Prosecutor) in The Hague. The second part is empirical: It illustrates the effects of this interpretation and the interaction of the ICC with the normative and institutional accountability frameworks in Uganda, Kenya and the Democratic Republic of Congo. Three aspects are explored in particular: the passage of Rome Statute implementation legislation; the establishment of specialised domestic courts as part of the institutional architecture for prosecuting grave crimes; and the initiation of actual, criminal proceedings that have ensued in the wake of ICC action.
This chapter explores the relationship between ICC interventions and efforts to reform the normative legal frameworks in Uganda, Kenya and the Democratic Republic of Congo with respect to atrocity crimes. It argues that it was less the ICC’s intervention or the desire to undertake domestic prosecutions that catalysed the passage of national implementation legislation in Uganda or Kenya; rather, implementation of the Statute was undertaken at certain political moments in order to ‘perform’ complementarity, typically for international audiences. But while the power of external constituencies was largely responsible for driving the implementation process, it often glossed over deeper concerns about the desirability of pursuing criminal accountability. The chapter also illustrates how the near identical importation of the Rome Statute’s substantive and procedural provisions reflects an increasingly disciplinary approach to implementation. By contrast, in the DRC, political mistrust in international judicial intervention not only thwarted the passage of comprehensive implementing legislation for many years, but appeared to encourage a more syncretic approach to implementation later on. Further, political contestation within the DRC was itself a catalyst that allowed other implementation strategies to take root, including the direct application of the Rome Statute by Congolese military judges in domestic proceedings.
This final, concluding chapter summarizes the book’s key findings and concludes that the ICC’s interventions and complementarity are better understood as axes around which advocacy for a global accountability norm has turned. Rather than a catalyst in itself, it is the court’s mediated relationship with non-state actors that has had the greatest ‘catalytic effect’ on domestic accountability efforts. In this sense, civil society organizations are both object and subject of this effect: They seek to expand complementarity’s normative influence, while having themselves been transformed by it. The chapter also offers a number of recommendations for future inquiry and practice: It urges a critical rethinking of the ICC’s politics, greater use of the Rome Statute’s cooperation and dialogue regimes (rather than admissibility) as an approach to encouraging domestic accountability, greater experimentalism, and a reorientation towards international criminal justice as a project of global legal pluralism.
This chapter examines how complementarity has evolved from a legal rule of admissibility - an organizing principle for the regulation of concurrent jurisdiction - to an instrument of policy. This policy, often referred to as ‘positive complementarity’, is one that promotes the International Criminal Court (ICC) and the ‘Rome Statute System’ as proactive agents for domestic accountability. Drawing on constructivist international relations literature, the chapter traces this more ambitious articulation of the ICC’s relationship to national jurisdictions and argues that its ascendance reflects the work of norm entrepreneurs and transnational civil society networks who, through a duty-based reading of the Statute, have progressively sought to articulate a more catalytic vision for the court and, with it, a broad array of policy goals. At the same time, this duty-based interpretation has contributed to an increasingly disciplinary approach to implementation, one that privileges a mirroring of the Rome Statute’s content and the ICC’s form. Complementarity’s evolution is thus testament to the significant influence of non-state actors at both the transnational and local level, and of a growing effort on their part to route the entrenchment of domestic human rights through the framework and standards of international criminal law.
This chapter offers a detailed review of the International Criminal Court’s (ICC’s) admissibility jurisprudence and argues that this body of case law largely requires states to mirror the same conduct (and even the same factual incidents) that the prosecutor investigates as a precondition for rendering a case inadmissible. While this approach is consistent with the coercive dimension of complementarity, it can also place a heavy burden on states, one that they may be unprepared (or unwilling) to meet. At the same time, the judicial treatment of Article 93(10), which provides the statutory basis for a ‘positive complementarity’ policy has been scant. Complementarity thus appears less as a space for constructive engagement and dialogue than a set of unifying criteria with which states must comply. While court officials and some commentators have defended the ICC’s approach, suggesting that it is technically consistent with the wording of Article 17, others have advocated a more flexible approach. The chapter thus illustrates the tension that arises between complementarity’s policy goals and the ICC’s more narrow, judicial remit. It further suggests that such tension is symptomatic of legalism: It relies on an artificial division between the court as a legal and political actor.
This chapter addresses complementarity’s policy dimensions as engaged by the Office of the Prosecutor (OTP) and queries how the office has sought to influence state behaviour through two key areas of its work: preliminary examinations and investigations. Drawing on complementarity’s dual properties as both coercive and cooperative, the chapter first examines the OTP’s use of preliminary examinations as a tool to prod national jurisdictions into action. The chapter then offers a detailed review of the Kenyan preliminary examination, wherein the office, under Prosecutor Moreno-Ocampo’s tenure, took a largely coercive approach as it sought to push the government to establish a national accountability mechanism in the wake of its post-election violence. (By contrast, the office has elsewhere pursued a more cooperative, managerial approach to complementarity.) The chapter then considers the office’s early investigatory practices, focusing on Uganda and the DRC in particular. It argues that, particularly in cases of ‘self-referred’ states, investigations could have been a material site for a more positive, cooperative approach to complementarity. This has been to the detriment of the OTP’s relationship with national-level actors, but also, arguably, to its disappointing record of confirmed charges and convictions, which itself imperils the court’s catalytic potential.
This chapter examines the emergence of specialized domestic courts as a frequently cited outcome of ICC interventions. It highlights the shifting, adaptive nature of complementarity as the basis for reforming domestic judicial systems, even though the link between these efforts and the ICC itself is often tenuous. The chapter highlights how, in contexts like Uganda and Kenya, the threat of the ICC’s jurisdiction was used to prompt the setting up of domestic legal bodies and to buttress putative admissibility challenges. By contrast, recent descriptions depict these bodies more literally as extensions of the ICC: Rather than displacing the court, they are meant to complement and ‘complete’ its work. Non-state actors in the Democratic Republic of Congo have invoked complementarity in a similar manner, even though the domestic proceedings there through military courts are not materially connected to - nor the direct result of - the ICC’s undertakings. In tracing these shifts, the chapter considers complementarity’s duelling impulse towards conformity (specialized domestic courts often mimic the ICC) and competition (such courts are often in tension with the ‘ordinary’ justice system). I also suggest the concept of a ‘justice meme’ to understand how the perceived need for conformity with ICC practice is transmitted and replicated.
This chapter considers domestic criminal proceedings in Uganda, Kenya and the Democratic Republic of Congo (DRC) and queries to what extent ICC interventions have catalysed them. As further evidence of the catalysing effect that the ICC’s engagement has had on non-state actors, in particular, the chapter highlights the efforts of Kenyan civil society to pursue other forms of civil litigation as part of the logic of complementarity. Similarly, in the DRC, the use of mobile military courts supported by international NGOs and donors has been a civil society innovation, often invoked as ‘complementary’ to ICC intervention. While not connected to the court in a formal way, these proceedings constitute the largest number of domestic trials for international crimes undertaken by an ICC situation country to date. Finally, the procedural history of the sole trial to thus far come before Uganda’s courts in relation to the ICC’s investigations - that of former LRA commander (and child soldier) Thomas Kwoyelo - is examined. It highlights the vexed relationship between state power and complementarity, demonstrating how formal ‘compliance’ can lead to outcomes that are themselves at odds with human rights norms.