This chapter explores the practical implementation of the International Criminal Court's (‘ICC’) principle of complementarity in the situations of the Democratic Republic of the Congo (‘DRC’) and Uganda. Drawing on four years of fieldwork and more than 400 interviews with international and domestic actors, including rural populations in eastern DRC and northern Uganda, the chapter analyses how the principle of complementarity – especially within the ICC Office of the Prosecutor – has evolved theoretically over time, the events on the ground that have triggered significant shifts in the ICC's interpretations, how these changes have translated into practical shifts in ICC policy in the DRC and Uganda, and the often problematic outcomes of these strategies, principally for the long-term maintenance of the domestic rule of law. The paper advocates a significant re-think of complementarity in both theoretical and practical terms, especially in countries such as the DRC and Uganda that are experiencing ongoing conflict and major domestic legal reform.

Introduction

With the inaugural review conference of the Rome Statute taking place in Uganda in June 2010, the International Criminal Court (‘ICC’) is arguably nearing the end of its beginning. Sufficient time has now elapsed to evaluate the ICC's first steps, with the understanding that how it has commenced its work will greatly determine how it develops in the future. In particular, the ICC's current investigations and prosecutions in the Democratic Republic of the Congo (‘DRC’) and northern Uganda – the first in the Court's history – establish important precedents for its future operations. They also highlight a range of significant challenges the ICC faces in delivering international justice, principally its reliance on domestic governments when conducting investigations during ongoing conflict and when state actors are among the principal perpetrators.