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8 - Policy through complementarity: the atrocity trial as justice

from PART III - Analytical dimensions of complementarity

Published online by Cambridge University Press:  05 November 2014

By
Mark A. Drumbl
Edited by
Carsten Stahn  and
Mohamed M. El Zeidy
Carsten Stahn
Affiliation:
Universiteit Leiden
Mohamed M. El Zeidy
Affiliation:
International Criminal Court
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Summary

This chapter examines the macro-architectural effects of complementarity upon the content, imagination, narrative and meaning of inter- and post-conflict transitional justice. The complementarity doctrine privileges the liberal criminal trial and its concomitant, sequestered incarceration, over other justice mechanisms. Accordingly, complementarity may encourage heterogeneity in terms of the number of institutions adjudicating international crimes, but it encourages homogeneity in terms of the process they follow and the nature of the punishment they mete out. Complementarity embeds the iconic status of the courtroom and the jailhouse as the best practice to promote justice in the aftermath of mass violence. This conceptualization of justice, rooted as it is in select individual guilt, serves important accountability goals. However, it may square poorly with the collective nature of atrocity and even clash with the expectations of local populations; moreover, it also protects state, organizational, corporate and bystander interests, while privileging the craft of the international criminal lawyer. In response, the author suggests that power relationships in international criminal law be revisited, both vertically and horizontally. More immediately, he urges a gentle and flexible interpretive understanding of complementarity – a light touch, so to speak.

Introduction

One of the themes of this book is that ‘[t]he broader implications of complementarity in international relations and domestic societies are not yet well understood and researched’. In this chapter, I aim to unpack this theme. I offer some initial, and predictive, theorizing regarding the broader effects of complementarity in international relations, transitional justice and domestic policy-making. My focus begins with how complementarity informs the International Criminal Court's (ICC) admissibility framework. I posit that complementarity is not neutral in this regard. It is normative. It implicates much more than procedure. Much like its conceptual predecessor, primacy, the complementarity doctrine privileges the atrocity trial and its concomitant, sequestered incarceration, over other mechanisms of justice, truth-definition and punishment. Whether consciously or inadvertently, complementarity risks the subordination of alternate mechanisms of justice, including, most notably, traditional and ceremonial methods, state and collective responsibility, truth commissions, public inquiries and qualified amnesties. Accordingly, complementarity may encourage heterogeneity in terms of the number of institutions adjudicating international crimes, but it encourages homogeneity in terms of the process they follow and the punishment they mete out.

Type
Chapter
Information
The International Criminal Court and Complementarity
From Theory to Practice
 , pp. 197 - 232
Publisher: Cambridge University Press
Print publication year: 2011

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References

Drumbl, M. A., Atrocity, Punishment, and International Law (2007) 141–7, 187–94, 207CrossRef
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On 6 June, 2008, an ICTR Trial Chamber denied on somewhat similar grounds to those in Munyakazi the Prosecution's request to transfer the case of Gaspard Kanyarukiga to Rwanda. The referral of Michel Bagaragaza to the Netherlands was revoked (in 2007) by the ICTR Prosecutor after he was informed by the Dutch Prosecutor that the Dutch courts did not have the jurisdiction to try the case. Previously, the ICTR Prosecutor had sought to transfer Bagaragaza to Norway, which was denied by the ICTR Judges on the basis that Norwegian criminal law did not proscribe the crime of genocide.
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The Belgian NGO Avocats sans Frontières reports that, between May and December 2007, at the sector and appeal levels 43.4 percent of defendants were acquitted. Avocats sans Frontières, Monitoring des Jurisdictions Gacaca: Phase de Jugement, Rapport Analytique No. 4 (May – December 2007) 52
Ibid. 68. On 19 May 2008, the Rwandan government once again modified the Gacaca Law, inter alia, to include sexual torture crimes within the jurisdiction of the gacaca courts
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